Questions

During his final year of college, Henry got excellent grades and achieved a very high LSAT score. However, during that year, he had two car accidents, ran up $11,500 in credit card debt, and was fired from his part-time restaurant job after he inexplicably failed to show up for work for ten days. Henry was then evaluated and diagnosed by a psychiatrist, who concluded that Henry suffered from bipolar disorder. This condition, if untreated, can cause extreme shifts in mood, energy, and ability to function. Henry’s doctor explained that what he went through during his senior year was a manic period. The doctor prescribed medication. Ever since, Henry has been taking his medication as prescribed. Henry’s doctor considers his illness “well-managed,” and has told Henry that it would not affect his ability to practice law.

Henry started law school three months after he finished college. Now he has completed law school, graduating at the top of his class. He is well-liked by his peers. During his third year, Henry enrolled in a clinical course. He won both of his cases and he received an A in the course.

Henry is applying for admission to the bar. The character and fitness questionnaire asks, among other questions:

1) Within the past five years, have you exhibited any conduct or behavior that could call into question your ability to practice law in a competent, ethical, and professional manner?

If you answered “yes,” furnish a thorough explanation below.

2) Do you currently have any condition or impairment (including, but not limited to, substance abuse, alcohol abuse, or a mental or emotional or nervous disorder or condition) that in any way affects your ability to practice law in a competent, ethical and professional manner?

If your answer is “yes,” are the limitations caused by your condition or impairment reduced or ameliorated because you receive ongoing treatment?

Henry believes that his disorder does not affect his ability to practice law in a competent, ethical and professional manner, and his physician agrees and has supplied him with a statement.

Which one of the following statements is the most accurate?

Josh, a third year law student, is planning to apply for admission to the bar. He just looked at the questionnaire of the National Conference of Bar Examiners, which he will have to submit. It asks:

Have you ever been dropped, suspended, warned, placed on scholastic or disciplinary probation, expelled, requested to resign, or allowed to resign in lieu of discipline from any college or university (including law school), or otherwise subjected to discipline by any institution or requested or advised by any institution to discontinue your studies there?

Four years ago, a residential advisor found alcoholic beverages in Josh’s dormitory room in violation of college rules. At a meeting with a dean, Josh agreed to be put on probation for one semester, during which he would be allowed to take classes as usual. If he made it through the semester without any more infractions, the incident would be expunged from his record. He completed the semester without incident, and the matter was therefore expunged from his college record and not recorded on his transcript. His law school asked a similar question on its admission application, and he answered “no” to the question.

Should Josh reveal the above-described incident in his character and fitness questionnaire? Which of the answers below is most accurate?

Leta graduated from law school one year ago and is applying for admission to the bar. While in law school, Leta accumulated $150,000 of debt from law school loans and credit card expenses related to her wedding. Upon graduation, Leta turned down a high-paying job at a prestigious law firm, choosing instead to work for $12 per hour at a public interest organization that represents indigent people in consumer and bankruptcy cases. She plans a career in consumer credit and bankruptcy law. She hopes that her work at the organization will eventually lead to a full-time public service job. Accordingly, she has not been able to begin paying off her debt. One credit card company has obtained a judgment against her for $7,000. The state bar has denied her application for admission to the bar because it finds that her conduct with respect to her finances indicates that she is not fit to practice law. Is the state bar’s position legally sustainable?

Which one of the following statements is correct?

Which of these bodies sometimes exercise functions that are delegated or authorized by governmental institutions?

Membership in a state bar association is required for a person who is being licensed to practice law:

Parnik, a licensed attorney and state prosecutor, was arrested for stalking his ex-girlfriend. Parnik did follow his girlfriend on numerous occasions, spied on her through the windows of her house, and called her repeatedly after she had asked him not to do so. Nevertheless, a jury acquitted Parnik of the charges. Is Parnik subject to discipline for stalking his ex-girlfriend if the bar disciplinary authorities determine that he committed a criminal act that reflects adversely on his fitness to practice law?

Attorneys Carrie and Paige are partners in a small law firm. Paige supervises the work of the firm’s two associates. Over the last few years, Carrie has noticed that Paige has been intoxicated during the workday. In the last few months, Carrie has been smelling alcohol on Paige’s breath during the workday at least two or three days a week. Paige continues to meet with clients and work on cases, but Carrie believes Paige’s work is suffering as a result of her drinking. In the past two weeks, she has received calls from three of Paige’s clients complaining that Paige either failed to show up for a meeting or failed to return a call. Last Tuesday, she found Paige passed out on the couch in her office at 11 am. There was vomit all over a client file that was on the floor near her head. Today she learned that a case that Paige was handling, to recover damages for a woman who was badly injured in an accident, was postponed for six months after Paige failed to appear for a court hearing. Carrie has tried to talk with Paige about her drinking problem, but Paige refuses to discuss it. Carrie is considering reporting Paige’s behavior to the disciplinary authorities. She has not discussed this with other attorneys in the firm or with any clients. Would Carrie be subject to discipline if she fails to report Paige’s conduct to the disciplinary authorities?

Grace is an associate in a law firm. Her firm bills clients by the hour. When she began working for the firm, she signed a statement in which she agreed to abide by firm policy. The firm policy stated in part: “All misconduct shall be reported promptly to the managing partner and shall not be revealed to anyone else in the firm or outside the firm.” Grace discovers that Arthur, the partner who supervises her work, always alters her time sheets by multiplying the number of hours she reported working by 1.2, thereby claiming to the clients that she spent 20 percent more time on each project than she actually spent, and billing the clients accordingly. Grace reports the misconduct to the managing partner, who tells her that she need not concern herself with the conduct of her superiors. He takes no action. Would Grace be subject to discipline if she failed to report Arthur’s conduct to the disciplinary authorities?

Zarah is a partner at a law firm. She supervises the work of a junior associate, Charlie. They are representing Whitney in her divorce proceedings. The divorce involves a heated battle over the custody of the daughter of Whitney and her husband, Cody. Zarah asks Whitney whether she knows the password for her husband’s e-mail. Whitney gives it to her. Then Zarah gives the password to Charlie and instructs him to copy all the e-mails in Cody’s account and read them to see whether Cody is having an affair. Charlie objects. Zarah says that this investigative work could win the case for Whitney and threatens to fire Charlie if he does not comply. Charlie complies. They learn that Cody really is having an affair, and Whitney wins custody. When Cody discovers what happened, he files a disciplinary complaint against Zarah and Charlie. Assuming that Charlie’s surreptitious review of Cody’s e-mail is unlawful and is a rule violation, which one of the following statements is accurate?

Carson is admitted to practice only in state A. State A has adopted Rule 8.4 of the Model Rules of Professional Conduct. Carson commits a minor fraud in state B against a citizen of state B, and is prosecuted for this misdemeanor offense and punished in state B. Is Carson subject to discipline in state A?

Eloise is a law professor in state B who maintains active licenses to practice law in states A and B. She has not practiced law in some time and does not plan to practice law in the near future. Eloise wrote and published a law review article in state B criticizing the criminal justice system in state A. The article includes long passages of plagiarized material, and includes some false statements about the law in state A. The disciplinary agency in state B is unable to decide whether the plagiarism and false statements were intentional, but it imposes a six-month suspension for this conduct. Is Eloise subject to discipline in state A?

Jabari is an associate at a law firm in state A. He is admitted to practice only in state A. Jabari goes to state B to litigate a matter on behalf of a client. He is admitted pro hac vice in state B. Jabari violates an ethical rule that has been adopted in state B requiring disclosure of client perjury to the judge. State A has not adopted any similar rule. Could Jabari be disciplined in state A even though state A has not adopted the rule that Jabari violated?

Sasha is an associate in the law firm of Garrett & Glass, LLP. Recently, Sasha discovered that Gerry Glass, one of the partners, had stolen large sums of money from Healthwest, a client organization. In one case, for example, Gerry was defending Healthwest in a personal injury suit. Gerry reached a settlement under which Healthwest would pay the plaintiff $100,000, but he told the CEO of Healthwest that the organization was obliged to pay $200,000. Healthwest sent Gerry a check to cover the settlement. Gerry deposited the check in a firm account, paid the plaintiff $100,000, and wrote himself a check for the remainder. Gerry did this secretly. His law firm billed the client for legal fees as usual. Gerry repeated this same pattern in a series of cases over a seven-year period.

The evidence that Gerry has stolen funds from Healthwest is indisputable. Sasha explained the whole situation to the law firm’s general counsel. He instructed Sasha to keep the matter to herself. The general counsel, who is an old friend of Gerry’s, said that he didn’t “want to blow the matter out of proportion and hurt Gerry unnecessarily.” He said he would talk with Gerry about it and make sure that the clients were reimbursed and that the situation would not recur.

Which of the following correctly states Sasha’s professional duty in this situation?

Mayra, an attorney licensed in Indiana with a law office in Gary, Indiana, had a business office in Illinois. In her Illinois business, she imported maple syrup from Canada and sold it to distributors in California. Her importing work was unconnected with the legal work that she did in Indiana. Two years ago, she deliberately misrepresented the grade of a shipment of syrup and thereby overcharged her U.S. customers. When they discovered the fraud, they confronted Mayra, who settled with them out of court for an undisclosed sum. The matter was reported in the trade press. One of her customers sent a copy of the article to the Indiana bar disciplinary authority. Is Mayra subject to discipline in Indiana based on these events?

Burke is a trusts and estates lawyer. Ida, an acquaintance, asks him to represent her in a negligence lawsuit against a major retail company. She stands to make millions from the lawsuit, and she is happy to hire Burke on a contingent fee basis. Burke has never before handled a negligence action, and he has never handled a trial of any kind. Burke accepts the case. He does not tell Ida that he has no experience in negligence work and has not handled a trial. He wishes that he knew a lawyer who was experienced in handling cases of this sort whom he could consult, but unfortunately, he does not have such a contact. He studies the relevant law and procedure. He performs well but loses the case. Is Burke subject to discipline?

Carla, a graduating law student who is in the United States on a student visa, is having lunch with her friend Alice, an environmental lawyer who graduated from the same law school the previous year and who was just admitted to the bar. Carla knows that during law school, Alice did a summer internship at a small immigration law firm, where she helped companies that were seeking employment visas for some of their workers. Carla tells Alice that her student visa is about to expire, but that she has just been offered a job at a law firm. She asks whether the law firm could sponsor her for a visa. Alice responds, “Unfortunately, I don’t believe that law firms can sponsor people who are straight out of law school for employment visas. My advice would be to go back to your home country for a year and apply for jobs from there.” Carla, who reasonably believes that Alice was providing correct legal advice, turns down the law firm job and returns to her home country. A few months later, she learns that Alice’s advice was incorrect. The law firm could have sponsored her for a work visa. She tries to get the job back, but the firm informs her that it hired someone else and can no longer hire her. Alice’s advice was negligent and was the cause of Carla’s return to her home country and failure to get the job. Alice never signed a retainer, paid a fee, or otherwise agreed to be Carla’s lawyer. Carla sues Alice for negligence. May a court grant judgment against Alice for malpractice?

Attorney Priya represents Janice in her suit against a major canned goods company, after she contracted botulism from a can of pickled fish. Priya receives an e-mail from opposing counsel saying that he is ready to meet to discuss settlement. Priya asks Janice if they can meet the next day to talk about what terms Janice wants. When they meet, Priya tells Janice that she thinks she could get at least $4 million dollars in a settlement. Janice is thrilled at that number, and she tells Priya, “I didn’t think we could get nearly that much! You have been such an amazing lawyer and friend throughout this process. If they come to us with an amount lower than that, and you think that we can get more by rejecting the offer, I trust your judgment. Do what you think is best.” The next day, Priya meets with opposing counsel, who informs her that the company is offering $3.25 million dollars to settle the case. Without conveying the offer to Janice, Priya responds, “That number does not come close to addressing the pain and suffering my client has been through. My client rejects your client’s offer.” The case goes to trial, and Janice loses and recovers nothing. She complains to the bar. Is Priya subject to discipline for not telling Janice about the offer?

In 2009, Anita, a criminal defense lawyer, represented Liam, an immigrant from Australia who was charged with selling cocaine. Under state law, if convicted, Liam could have been sentenced to five years in prison. The district attorney offered a deal providing that if Liam pled guilty, he would be sentenced to serve a term of 14 months. A criminal defense lawyer must give a client accurate advice about the potential adverse legal consequences of entering a guilty plea. Even so, without researching the potential immigration consequences of this guilty plea, Anita recommended that Liam accept the offer, and Liam did so. At the end of the 14 months, the state turned Liam over to federal immigration authorities, who deported him to Australia based on the criminal conviction. Liam cannot show that he would not have been convicted of a deportable offense if he had gone to trial. In 2010, the Supreme Court decided the Padilla case, holding that a conviction based on prejudicially incompetent plea-bargaining advice from a lawyer could be reversed. The highest court of the state has held that the Padilla decision does not apply to advice given before that decision. May Anita be subject to discipline?

Jill, an attorney, brings a lawsuit on behalf of her client, Ann, against Grant, after Grant fails to repay Ann’s loan to him of $5,000. The retainer provides that Jill’s contingent fee will be 30 percent of any recovery. Jill files the complaint one day too late, and the suit is dismissed with prejudice. Jill is chagrinned and embarrassed and wants to make amends for her mistake. She would like to pay Ann out of her own pocket without disclosing her error to Ann or to anyone else. She would simply get Ann a cashier’s check for the portion of $5,000 that would have been paid to her if the court had ordered Grant to repay the $5,000. May she do so if she avoids making any false statement about the source of the funds?

Client Sylvia hired lawyer Dino to represent her in a personal injury action against Chainmart. In the course of the representation, Sylvia told Dino that she was prepared for the case to go to trial, if necessary, and that she probably would not even consider accepting a settlement offer below $2 million. Dino thought she might be awarded $10 million or more if the claim were decided by a jury.

The evening before trial, opposing counsel called Dino and offered a settlement of $1 million. Dino tried calling Sylvia but could not reach her. Five hours after trying unsuccessfully to reach Sylvia and hoping to be able to get some sleep before the trial, Dino called opposing counsel and rejected the offer. The case went to trial the next morning, and after trial, the jury awarded Sylvia $5 million. Is Dino subject to malpractice liability for his actions?

Harriet intends to bring an action in small claims court against her landlord. She meets with lawyer Joaquin, who is experienced in landlord-tenant law, to see if he will represent her in the matter. After discussing the case, Joaquin and Harriet agree to a flat fee of $1000 for the representation, a reasonable fee given the time and effort Joaquin will expend on the case. Joaquin knows that Angela, a landlord-tenant lawyer three blocks away, would do the same work for $500. In fact, Joaquin believes that Harriet’s case is so strong that she could probably represent herself and win. Joaquin does not inform Harriet of these things, and he accepts the case. Is Joaquin subject to discipline?

Seymour owns and manages a small dairy farm. Recently, Seymour discovered that his fertilizer supplier had been mislabeling its fertilizers as organic when, in fact, they were not. Seymour has had to recall many of his products that were labeled as organic, at great expense, and his reputation has suffered as a result. He wants to sue the supplier for damages. He meets with attorney Gemma to see whether she will represent him. Gemma’s usual fee is $200 per hour. Knowing that Gemma is one of the best lawyers in town, Seymour offers to pay her $250 per hour for her services. Gemma has the time and requisite knowledge and experience in the field to represent Seymour. However, as a vegan, she would find it morally repugnant to represent a dairy farmer. May Gemma refuse to represent Seymour?

Attorney Susan began representing client Taylor five years ago, when Taylor purchased a small sandwich shop. Susan assisted in drawing up the paperwork for the purchase of the business and has since then advised Taylor on various legal matters related to the business. Now, Taylor would like to sell the business, and she has identified a potential buyer. Taylor would like Susan to represent her in negotiations with the buyer. Based on her knowledge of the business over the past five years, Susan suspects that Taylor may have created some fake invoices and overstated the value of the inventory in the shop in order to inflate the value of the business, but she does not know this to be the case. She decides not to investigate further and draws up the paperwork for the sale. Is Susan subject to discipline?

Uma’s good friend Wendell is a seasoned litigator. She reasonably believes that he can competently represent Royce at the hearing, so she asks him if he can handle the hearing for her, and he agrees. He agrees to treat the file as confidential and to return it to Uma promptly after the hearing. Uma leaves a phone message for Royce, but he doesn’t return her call. She gives Wendell Royce’s file so that he can familiarize himself with the case. Assume that Wendell can competently represent the client at the hearing.

Was it proper for Uma to give Wendell the file?

Sophia retained Drake as her attorney to sue the city where she lived after she stepped into a deep hole in the sidewalk, fell, and broke her leg. She incurred $4,000 in medical bills and suffered a great deal of pain. State law provides that a city is not liable in suits for personal injury unless the suit is filed within one year after the injury occurs. Drake never filed the suit. Six months after the one-year period was up, Sophia sued Drake for malpractice, based on his failure to file the lawsuit.

In fact, Drake called Sophia five days before the one-year period was up and told her that he was ready to file, and Sophia told him not to go ahead with the case. When he asked why not, she said, “It is because I am a finalist for a job as the city’s commissioner of parks, and I probably won’t get the job if I sue the city. I’m telling you this in the strictest confidence. If I don’t get the job, I don’t want anyone, including my husband, to know that I applied for this job and didn’t get it.” Sophia was not selected for the job. She decided to sue Drake because she needed compensation for her injuries.

Drake asserted, in his answer to Sophia’s malpractice complaint, that Sophia told him not to file her suit because she was hoping to get a job as commissioner of parks. He limited the disclosure to the minimum necessary to defend himself against this spurious malpractice claim. Is Drake subject to discipline?

A law firm has offices in three major U.S. cities. Once a year, lawyers from all three offices convene for a firm retreat. One of the partners in the firm, Sandler, represents Nigel, a celebrity chef, in several lawsuits (filed both by and against Nigel). Sandler prepares a complex counseling exercise for the retreat, based on his relationship with Nigel, called “Dealing with a Difficult Client.” Sandler does not change Nigel’s name or any of the facts in any of the training materials. The materials provide detailed descriptions of cases in which Nigel was a party, and included stories about difficult interactions between the chef and his lawyers. The materials are distributed in loose leaf notebooks clearly marked “confidential training materials.” Nigel learns about the training program from Tommy, one of the firm’s junior lawyers, whom Nigel is dating casually (unbeknownst to Sandler). Nigel is furious. Is Sandler subject to discipline for violation of Rule 1.6?

On a dark night in a bad part of town, a young man named Alan is found dead. Chad is arrested and put in jail, accused of murdering Alan. Chad tells Alberto, his lawyer, that he could not have murdered Alan, because at the time of the murder, he was burying the body of another man, Ethan, whom he had killed. Ethan has been declared missing, and the police are investigating whether foul play has occurred. Chad tells Alberto where he buried Ethan. Obviously, Chad does not want anyone to know his alibi because then he would be charged with another murder. In exchange for the alibi information, Alberto could obtain a desirable plea bargain for Chad on the current and prospective charges. May Alberto reveal this information to the prosecutor without consulting Chad?

Jennifer is a partner at a small law firm, and she has been practicing law for eight years. During that time, she has handled primarily trusts and estates cases. Recently, however, she has taken on a domestic relations case representing a woman named Eunice, who is seeking a divorce from her husband, Rudy. During this representation, Jennifer discovered some evidence that indicated that Rudy was sexually abusing Eunice’s daughter. Eunice does not want Jennifer to report this to authorities, because she doesn’t believe that it is true. Jennifer is not sure whether she has a duty to report the apparent child abuse to the state authorities pursuant to a state reporting statute. Nobody else in Jennifer’s firm has any experience with family law. A friend of Jennifer, Isai, is an experienced domestic relations lawyer in a different law firm but is not her firm’s ethics counsel. Jennifer has not talked with Eunice about consulting another lawyer. May Jennifer consult Isai about whether she has a duty to report the sexual abuse?

Attorney Moira represents defendant Oleg in a murder trial. The police discovered the victim’s body in a ditch and found Oleg’s fingerprints on a kitchen knife that was under the body. Before the trial commences, Oleg tells Moira that he did not murder the victim, but he knows that his son did, because his son confessed to him. He tells her that under no circumstances will he turn his son in, and he does not want his son to know that he told Moira of his son’s confession. He refuses to testify at his trial. What is Moira’s best course of action?

Attorney Mosi is representing Blake, a naturopathic doctor accused of malpractice. Blake is accused of having prescribed Amaronset, a homeopathic compound to Eloise, a patient suffering from migraine headaches. Amaronset is not regulated by the FDA and it has not been widely used to treat migraines. Blake did not tell Eloise that the use of this substance was experimental. Three years after her treatment ended, Eloise died from a brain tumor. Her family is suing Blake, who is no longer prescribing Amaronset.

A study recently published in Germany found that 1 in 20 of the people who took Amaronset for more than two years developed malignant tumors. During the course of his representation, Blake tells Mosi that he prescribed Amaronset to two other individuals who suffered from migraines. They both took this compound for three years, and in both cases stopped taking it four years ago. These two patients do not know about the recent research on Amaronset or that Eloise died from a brain tumor. Blake refuses to inform these patients about the research or the demise of Eloise, because he does not want to open himself up to further liability. Mosi reasonably believes that it is not reasonably certain that Blake’s two other patients are at risk of death or substantial bodily harm.

Does Mosi have the discretion to reveal this information to Blake’s other patients?

Attorney Dahlia represents restaurant owner Stefan in a negligence suit. During the course of her representation, Dahlia learns that Stefan uses PestOFF, a rat poison, in his kitchen. PestOFF has recently been shown to cause birth defects if consumed, even in tiny amounts, by pregnant women, and its use within the state has been banned. Its use is a misdemeanor punishable by imprisonment for up to six months. The product was applied only once, and only to the floor of a closet where cleaning supplies were kept. It was never used near food. There is nothing to suggest any ingestion or injury to a person. A city ordinance requires anyone, including lawyers and doctors, who learns of the use of PestOFF to report it to local police immediately. Failure to report is a violation punishable by a $50 fine. Dahlia confronts Stefan and insists that he stop using this product and that they report his past use to the police. Stefan agrees to stop using the product but refuses to report his past use to the police. Dahlia then withdraws from representation of Stefan and reports Stefan’s use of PestOFF to the police. Is Dahlia subject to discipline for reporting Stefan’s use of PestOFF to the police?

Attorney Seamus represents Rona in her purchase of an apartment in a major metropolitan city. The apartment is priced well below market value, and it seems to both Seamus and Rona that it is a very good deal. Seamus learns that the apartment is priced so low because one of the bedrooms was constructed below ground level in violation of the city’s housing code. When Seamus relays this information to Rona, she gets cold feet and decides not to sign the contract. She finds another apartment and closes a purchase agreement. As it happens, Seamus is also looking to buy an apartment. The apartment that Rona declined to buy would work well for him and his family. He is also willing to buy the apartment knowing that it has a bedroom that does not meet the code requirements. He talked with Rona about his interest in the apartment. She says it would not concern her at all if he bought it. May Seamus purchase the apartment?

Salima represents Anthony, a man accused of stealing money from his company. Anthony was a bookkeeper at a small bakery. His duties included administering the payroll system. Anthony altered a computer program so that he would be paid an extra few hundred dollars a month by the company. He got this higher pay every month for several years. Anthony’s theft from the company was noticed during an accounting audit and he is facing criminal charges.

During a meeting to discuss the criminal charges, Anthony tells Salima that he also rigged the program so that he would also receive approximately $200/month that should have been paid to Jason, a custodian with six children. He says that after he was caught stealing, Anthony re-programmed the system so that the checks would be properly paid going forward. Neither Jason nor the company are aware that Anthony stole from Jason. Salima asked Anthony if he plans to fess up and repay Jason. He says “No way. I’m in enough trouble already.” Salima disapproves but says nothing.

Salima meets with the company’s general counsel to discuss restitution to the company. The general counsel tells Salima that the audit is complete and presents an accounting that lists only the money that Anthony stole from the company.

Salima reasonably believes that unless she reveals the theft, there will be no restitution to Jason. May Salima reveal this information without Anthony’s consent?

Attorney Yoshi represented client Cyrus in his divorce. During the course of the representation, Cyrus told Yoshi that if his ex-wife, Tisha, was awarded their beachfront vacation home in Florida, he would burn it down when it is vacant, because he could not stand the thought of his ex-wife using the vacation home without him. Yoshi advises Cyrus that this is a terrible idea. He points out that deliberate arson could lead to criminal charges and civil liability, not to mention termination of visitation rights. He also cautions that Cyrus could injure or kill a member of his family if he burns down that house. Cyrus repeats to Yoshi that he would not do this if anyone was in the house, but he does not assure Yoshi that he won’t torch the building. The divorce was finalized, and Tisha was awarded the vacation home. Yoshi has terminated his lawyer-client relationship with Cyrus. Yoshi reasonably believes that revelation is necessary to prevent Cyrus from committing a crime that is reasonably certain to result in substantial injury to Tisha’s house. May Yoshi warn Tisha or her attorney that Cyrus is planning to burn down the vacation home?

Ella, a public defender, represented a college student named Kenneth. Kenneth was driving his brother Thomas’ car and was stopped for going through a red light. The officer spotted what looked like cocaine and drug paraphernalia on the front seat and arrested Kenneth. When the substance was tested, it turned out to be cocaine. Against Ella’s advice, Kenneth told Ella that he planned to plead guilty. Ella writes a blog in which she regularly recounts her experiences as a public defender. After Kenneth was released pursuant to a negotiated deal for deferred prosecution, she wrote on her blog: “#126409 (the client’s jail identification number): This stupid kid is taking the rap for his drug-dealing dirtbag of an older brother because ‘he’s no snitch.’ I managed to talk the prosecutor into treatment and deferred prosecution, since we both know the older brother from prior dealings involving drugs and guns. My client is in college. Just goes to show you that higher education does not imply that you have any sense.” Jail identification numbers are not available to the general public. Is Ella subject to discipline?

Which one of the following statements would be protected by the attorney-client privilege if an adverse party sought to compel the lawyer to disclose the information?

Attorney Leticia represents client Benjamin, a pharmacist, in an employment discrimination suit. With the help of his best friend Rocky, who happens to be sleeping on his couch that month, Benjamin writes a summary of the case, which Benjamin then emails to Leticia. Which one of the following statements is correct?

Attorney Damon represents his friend George in a civil case in which George is a defendant. George is alleged to have driven into the plaintiff’s fence negligently. George and Damon meet in Damon’s office to discuss the case. After some discussion about their children, who play together, George tells Damon that he was driving under the influence of PCP at the time of the incident. Several months later, George’s wife files for divorce, and her lawyer subpoenas Damon to testify. The wife’s attorney wants Damon to testify that George told Damon that he drove under the influence of drugs. May Damon be required to testify about George’s use of PCP?

Attorney Salim represents Roland, a doctor, in a medical malpractice case. In an e-mail, Roland reveals to Salim that on the day in question, he had had a couple of drinks before he performed the surgery at issue. He asks Salim whether that would expose him to punitive damages. Salim replies that it would not, under the law of the state. Roland is to testify at the trial. In preparing for his testimony, Roland asks Salim whether, if the opposing counsel asks Roland whether he had anything to drink on the day in question, he can successfully invoke attorney-client privilege to avoid answering the question. Salim’s answer should be:

Which one of the following communications would be protected by the attorney-client privilege?

Tax attorney Tammy represents client Lilian, who plans to buy several tickets to upcoming concerts using her student ID and sell them to non-students for a significant profit. Lilian seeks Tammy’s advice as to whether she must pay income tax on the money she expects to make. Lilian does not know that reselling student tickets for profit is illegal in her state, and when Tammy informs her that it is, she does not go forward with the plan. Is Lilian’s conversation with Tammy privileged?

Attorney Aria represents Jaya, who is a defendant in a securities fraud prosecution. One day, Aria is interviewing Jaya about the allegations that she engaged in insider trading. Jaya, who is married, brings a man named Josh to the interview, and she reveals to Aria that she is having an affair with him. She further reveals that the Josh provided her with some inside information. Josh is not a defendant in the case and is not represented by Aria. Jaya’s statements about Josh are:

The police arrested a middle school band teacher for repeatedly sexually abusing numerous female students aged 9 to 12. The molestation occurred during private music lessons and took place over a seven-year period before the teacher was arrested. Some of the victims told the police that they had reported the abuse to the school principal after it occurred, but the principal had failed to take action against the teacher. After the teacher was arrested, some of the victims and their families filed suit against the principal and the school board. The school board hired the firm of Schoenholtz & Koplow “to investigate the response of the school administration to allegations of sexual abuse of students.” The board explained that it would need a full report so that it could decide whether to settle or litigate the claims against it. Meanwhile, the school board also hired a respected trial lawyer, Lindsay, at another firm, to represent the board in the lawsuit. Schoenholtz & Koplow interviewed all the officers of the school board to find out what they knew about the molestation, when they learned what they knew, and what they did after they received the information. Their notes and report were turned over to the school board, which gave them to Lindsay. The plaintiffs in the lawsuit requested, during discovery, the notes made by Schoenholtz & Koplow during their interviews. Lindsay must:

Attorney Alton recently filed a medical malpractice action on behalf of Juan against Metropolitan Hospital, where Juan was sexually assaulted by a staff member while he was being treated for a psychotic episode in the psychiatric ward. Juan was traumatized by his experience at the hospital. In a telephone call before their first meeting, Alton learned that Juan suffers from post-traumatic stress disorder and needs a social worker to be present in all stressful situations. Alton therefore asked Juan to bring his social worker, Pierre, to all of their meetings. Juan pays Pierre to assist him, and he brought Pierre to all of his meetings with Alton. The lawyers for Metropolitan Hospital have learned about Pierre’s presence during the meetings between Juan and Alton. The hospital is seeking discovery of the conversations that took place during those meetings. Which one of the following statements is correct?

Paula, a lawyer, drafted a will for Viet. The will stated that in the event of his death, his property should go to “my children.” Viet and his wife Jenny had two sons. After his death, Edith, a woman with whom he had had an affair, proved through DNA evidence that he also had fathered her son Michael. She claimed that her son was entitled to one third of the estate. During probate of the will, Paula plans to testify that Viet had told her that what he meant was that his property should go to his children Gabriel and Veronique, and any children that he and Jenny later produced. Since Jenny is next of kin, Paula has obtained her informed consent to this plan. Paula would assert that she was waiving the privilege on behalf of her deceased client.

Edith’s lawyer objects on the ground that Paula’s testimony would violate the attorney-client privilege. Should the probate judge allow Paula to testify about Viet’s intent?

Attorney Khalid represents Martin, who is in jail awaiting trial. Martin has been charged with robbing a bank. The evidence against him, including potential testimony from Terence, the getaway driver who has been given immunity from prosecution, is strong. Khalid receives a letter from Martin, written from jail. The envelope is marked “legal mail,” meaning that it would not be opened or read by the jail’s corrections officers. The letter instructs Khalid to forward to Martin’s cousin Jasper the sealed envelope, addressed to Jasper, that is enclosed with the letter. Instead of contacting Jasper or forwarding the letter, Khalid opens the envelope that is addressed to Jasper. It says that Jasper should supply a false alibi to Martin by testifying that Martin and Jasper had been together all day on the day of the robbery, packaging marijuana that they planned to sell. Khalid does not forward the letter to Jasper. Instead, he keeps it in his office. Before the trial, the prosecutor issues a subpoena to Khalid, directing him to produce at the trial any non-privileged correspondence from Martin. Must Khalid produce the letter to Jasper?

Tandy is a practicing lawyer and adjunct law professor at Frostburg Law School, which is part of Frostburg University. Two Caucasian high school seniors have asked her to represent them in their lawsuit against Frostburg University. They allege that Frostburg University did not admit them to the undergraduate program because of race discrimination. Specifically, they allege that students of color with similar test scores and grades were admitted to Frostburg University, while they were not. Tandy reasonably believes that she can competently and diligently represent the students in their lawsuit. She obtains informed consent, confirmed in writing, from both the students and the university. May Tandy represent the two students in their lawsuit?

Attorney Charlie works at a law firm of 30 lawyers in a large city. He represents his friend Suma in a wrongful discharge suit against her former employer, an architecture firm. Suma and her husband, Todd, are in the process of divorcing. Suma has retained a family lawyer associated with another firm to represent her in the divorce case. Charlie just learned that one of his law partners, Angus, is representing Todd in the divorce. Charlie and Angus agreed not to communicate with one another about either of the matters. They did not speak to Suma and Todd about the conflict. May Charlie continue to represent Suma in her civil suit against her former employer?

Attorney Pavel is a criminal defense lawyer representing Denny, who is charged with larceny. Denny, a pro bono client, is alleged to have stolen a piece of jewelry from a jewelry box during a house party. In an unrelated matter, Pavel is defending Betty, for a fee, against a criminal charge of arson. Both cases are assigned to be heard by a single judge. During Denny’s trial, the prosecutor calls Betty to the stand. She testifies that she was at the party in question and saw Denny go in and out of the room where the alleged theft occurred. She further testifies that she never went into that room. Earlier, Denny had told Pavel that he saw Betty go into the room, and he suggested that she may be the thief. Pavel intends to cross-examine Betty on this point. Is there a conflict of interest?

Attorney Meghan represents Walter, a used-car salesman who has been criminally charged with driving while intoxicated. Before Walter’s trial, a friend of Meghan’s, Laurel, asks Meghan to represent her in her breach of contract suit against Walter and his company. If Meghan were to sue Walter on behalf of Laurel, another lawyer would defend Walter in that matter. Meghan has formed a close bond with Walter as a result of her work on his criminal case, and she reasonably believes that she could not represent Laurel very vigorously, because of her friendship with Walter. She explains her concern to Laurel, and Laurel states that she understands the risks and agrees to the representation anyway. She confirms her understanding in writing. Walter also gives informed consent in writing. May Meghan represent Laurel?

The state in which Stella practices recently enacted an animal cruelty law. Stella represents Chix, Inc., a poultry company, in a suit brought by a local animal rights group. The suit alleges that the poultry company has violated the new state law by failing to provide adequate ventilation in the chicken coops. The suit seeks punitive damages. Stella files a motion to strike the punitive damages request, urging that the new law does not allow recovery of punitive damages.

In an unrelated matter, Stella represents a group of students at a small Christian college, seeking to recover punitive damages against the school for allowing dissection of live animals in their school’s biology classes in violation of the statute. When Stella agreed to represent the students, she explained to them that she was arguing against the availability of punitive damages in the Chix case. Stella is representing the students pro bono, so even if punitive damages were granted, she would not receive a portion of the award as a legal fee.

Which of the following factors is least relevant to determining the risk that Stella’s actions on behalf of one client would materially limit Stella’s effectiveness in representing the other?

Chloe and Matilda are partners in a small law firm. Chloe has represented Speisler Motors, an auto manufacturer, for years. She represents Speisler in all litigation in which it is a party. At present she is defending the company in a lawsuit brought by Tom, a driver of a Speisler car who was blinded when an airbag spontaneously exploded while he was driving. When the bag exploded, Tom’s car hit Anton, a pedestrian, who died some days after the accident. The executor of Anton’s estate has asked Matilda to represent the estate in a lawsuit against Tom and Speisler Motors. Matilda believes that she would be able to provide competent and diligent representation to Anton’s estate, and Chloe believes that she would be able to provide competent and diligent representation to Speisler Motors. They have agreed not to talk with each other or to share documents relating to the matter. Speisler, Tom, and Anton’s executor all give verbal consent to the representation after full disclosure of all material risks. Is it proper for Matilda to accept representation of Anton’s estate?

Valladia, Inc., is a small, closely held corporation. Valladia and its president, Alan, are defendants in a civil action brought by a state attorney general who accuses both of them of fraud, based on the same facts and the same law. Both of them desire to be represented by Martha, an attorney. Martha will bill each defendant for services provided on behalf of that defendant. Martha reasonably believes that she could provide competent and diligent representation to both of them. Martha advises the board of directors of Valladia of all the foreseeable risks of the corporation being represented by the same attorney who is representing Alan, and she advises Alan of all of the foreseeable risks of being represented by the lawyer who is representing the board. Valladia’s board of directors votes to approve the representation, and Alan approves as well. Martha writes a letter to the corporation and to Alan noting that both have given their informed consent to her representation of both parties. May Martha represent both of them?

Carlos, a sole practitioner, represents Sharky Products, Inc., a property owner that disputes an adjoining owner’s right of access to an alleyway between their buildings. Carlos sent a letter to the other property owner, Berry’s Beauty Supply Co., to explain the problem. He received a reply from Berry’s lawyer, Eleanor, requesting that Carlos withdraw from representation of Sharky. Eleanor claimed that Carlos was prohibited from handling this matter because five years ago, Carlos represented Matthew, the president and sole owner of Berry’s, in a claim against the manufacturer of a lawn care product that he used at his home. The matter took three hours of Carlos’ time and Matthew was satisfied with the resulting settlement. Carlos has had no contact with Matthew since then.

May Carlos continue to represent Sharky Products, Inc.?

Last year, attorney Mira represented Sally, the owner of a small pizza restaurant, in a suit against Rome’s Own, Inc., a supplier of shredded cheese, based on breach of contract. The parties settled the claim for $15,000. Mira and Sally remained friendly after the matter was settled, and they have gone to the movies and to dinner a few times in the last year. Earlier today, Sally’s next door neighbor, Jose, came into Mira’s office for a consultation and asked Mira to represent him in a civil suit against Sally. Jose alleges that Sally’s pet macaw bit him, causing an infection and permanent scarring. Jose wants to get a court order against Sally requiring that the bird be euthanized pursuant to a state law. Sally already paid for his medical care. Jose does not want further damages. Must Mira obtain Sally’s informed consent before she can agree to represent Jose?

Use the facts from the previous question. Must Mira obtain Jose’s informed consent before she can agree to represent Jose?

Lawyer Shawn has handled various property and business transactions for Evelyn, her adult daughter Adelaide, and Evelyn’s business partner, Oliver, during the last decade. Those matters are all completed. Five years ago, Shawn wrote a will for Evelyn in which she left all of her property to Adelaide. In that work, Shawn represented and gave advice to both Evelyn and Adelaide. Adelaide, who lives with her mother, suffers from disabling epilepsy and has not been able to support herself. After Shawn finished drafting the will, he drafted a letter to Evelyn and Adelaide informing them that his office was closing their file and confirming the termination of their lawyer-client relationship. However, he failed to mail them the letter.

Last week, Evelyn came to Shawn to tell him that it’s time for Adelaide to stand on her own two feet. She mentioned that Adelaide has become involved with a boyfriend, Felix, and has been staying out nights. She would like Shawn to write a new will for her in which she would leave all of her property to Oliver. She further asks Shawn not to reveal to Adelaide the contents of the new will.

May Shawn write the new will for Evelyn?

Kieran, five years out of law school, accepted a job with Sato & Perlmutter, LLP. A couple of months after he started work, Miranda Perlmutter was asked to take over representation of Kasho Natural Foods in an ongoing lawsuit against the Roxbury Box Company. Kasho had fired its previous counsel after a dispute over legal fees. Miranda wants to accept Kasho as a client. However, there may be a problem.

Kieran came to Sato & Perlmutter from another firm, Podkrash and Associates, LLP, where he had worked for three years. The Podkrash firm has been representing the Roxbury Box Company in the Kasho litigation for the last two years. Kieran did not work on the Roxbury matter while he worked at Podkrash. While Kieran was working at Podkrash, he dated Lance, the senior paralegal at the firm. Lance oversaw all the staff work on the Roxbury matter and talked at length about the factual and strategic issues in the case with Kieran on many occasions. For example, the two men talked about a decision of the partner in charge of the litigation that a key document that might impact Roxbury’s liability was not covered by the plaintiffs’ discovery request. Lance disagreed with the partner’s decision, but ultimately decided to keep his mouth shut.

After consultation with her firm’s ethics counsel, Miranda decides to undertake representation of Kasho. However, she does not wish to terminate Kieran’s employment as a way to solve any conflicts problem. Instead, she timely screens Kieran from the lawyers working on the matter, sees to it that he receives no part of the fee from the Kasho matter, and provides appropriate written notices to Roxbury about the screening procedures.

Was Sato & Perlmutter permitted to undertake representation of Kasho in this manner?

Spencer, a businessman, calls Kai, an attorney. He says he is looking for a lawyer so that he can sue his former business partner, Max, with whom he has had a falling out. Kai says that he is accepting new clients and would be happy to meet with Spencer the following week if the type of case is one with which he is familiar. Spencer asserts that he has proof that Max was stealing money from his company and covering it up by keeping two sets of books. Spencer says he has photos of several pages from both sets of books, which he obtained by sneaking into Max’s house, where he found the books in the study and photographed them with his cell phone. Kai says he could handle that type of matter but before Kai can agree to represent Spencer, the two of them should meet in person, next week, to discuss fees and the other terms of representation.

The day after the phone call, Max calls Kai to ask for representation because he thinks Spencer is going to sue him. Max offers Kai a generous flat fee for the work. Kai would like to represent Max.

May Kai represent Max without Spencer’s consent?

Five years ago, attorney Barry worked at a large law firm with offices across the country. One of the firm’s partners defended Panko, Inc., an appliance manufacturer, against allegations that its toasters had a defect that would cause many of them to catch fire. Barry was not involved in that litigation and did not learn anything about it during his time at the firm. Barry has since opened up a private practice of his own. Ted comes to Barry’s new office seeking legal help. Ted tells Barry that his Panko toaster recently overheated and caused a house fire. He would like to sue Panko for damages. May Barry represent him a suit against Panko without Panko’s informed consent?

Armand, a lawyer, represented Walter, a plastic surgeon, during Walter’s contested divorce from his wife five years ago. Armand no longer has any contact with Walter, and he does not remember anything about Walter’s case. Recently, one of Walter’s patients, Celia, developed serious complications and nearly died as the result of the extensive cosmetic surgery that Walter performed on her. She wants to sue him for punitive damages based on gross negligence. She has asked Armand to represent her. May he do so without Walter’s consent?

Attorney Ash is a solo practitioner specializing in serving small businesses. Ten years ago, Ash handled a routine health department license application for Sprinkles, a newly founded small family-owned bakery. Sprinkles is now known for its cupcakes. Death by Cupcake (DBC) is a bakery across town from Sprinkles that also specializes in cupcakes. DBC would like to hire Ash to represent them in negotiating a commercial lease to open a new bakery. As it happens, the property it wants to lease is across across the street from Sprinkles. The increased competition would significantly hurt Sprinkles’ business. May Ash accept the representation without obtaining Sprinkles’ informed consent?

Attorney Roger is a solo practitioner in a small town. There are only about 70 lawyers in the town, and of those, only 20 (including Roger) handle divorce cases. One day, Roger does an intake interview with Leon, who is seeking a divorce. Leon reveals to Roger that he had several affairs during his marriage and that his wife, Reva, does not know about them. At the end of the interview, Roger tells Leon that he will let Leon know within a week whether he can accept his case.

The next day, Leon calls Roger to say that he has decided to retain another lawyer. A week later, Reva comes to Roger’s office seeking representation in the divorce. Recognizing her name, and before she says anything else, he asks her if Leon is her spouse. She confirms that he is. Roger immediately tells Reva that he may not be able to represent her. Before he can finish his sentence, Reva interrupts, “Is this because he came to see you already? I have already been told by five different lawyers that they cannot represent me because of a conflict of interest! I think Leon is just trying to prevent me from hiring a lawyer in this town.” A few days later, Roger is able to confirm that over the course of three days, Leon did a one-hour intake interview with every divorce lawyer in town.

May Roger represent Reva in the divorce?

Attorney Darla represents the plaintiffs in a class action lawsuit against Nutrisnax, a granola bar company, alleging false advertising. The plaintiffs allege that Nutrisnax falsely advertised its granola bars as a healthy alternative to candy bars when, in fact, the granola bars contained just as much fat, sugar, and sodium as the average candy bar. The class includes anyone who purchased a Nutrisnax granola bar in the last three years. Last week, a potential client named Samuel came into Darla’s office and asked her to represent him in his claim for child support against his former husband, Franklin. Darla learned that Franklin purchased hundreds of Nutrisnax granola bars during the relevant period, making him one of the unnamed members of the class in the granola bar suit. Must Darla obtain Franklin’s informed consent before agreeing to represent Samuel?

Chris and Bobby are accused of burglarizing a house. They want Meyer to represent both of them in the criminal matter because they prefer not to have to pay two lawyers. Also, they believe that if they coordinate their stories and refuse to cooperate with the police, the state won’t have enough evidence to convict either of them. No state statute prohibits lawyers from representing criminal co-defendants. Meyer obtains the police reports and charging documents. He also obtains the criminal records of both Chris and Bobby. From his investigation, Meyer learns that Chris may have been the instigator. Chris is 26 years old and Bobby is 19. Chris has three prior felony convictions, while Bobby has a prior conviction for possession of a small amount of marijuana, for which he received a suspended sentence that could be revoked if he is again convicted. Meyer’s law clerk recommends that Meyer obtain a court order permitting the joint representation, but Meyer declines to seek such an order because he believes that he can provide competent and diligent representation to both defendants. May Meyer represent both defendants if each gives informed consent to the joint representation, confirmed in writing?

Larry, the father of Linda, Abby, and Carl, died at age 87. His property was to be divided equally among his children. Louise, Larry’s partner, is executor of the estate. Most of his property is in cash and stocks, but Larry also left his children a lakeside cabin. The three adult children decide that Carl should take the cabin and should pay his sisters one-third of its value each out of his share of the cash and stocks. The appraised value of the cabin is $225,000, but Carl urges that, for the purpose of the transfer, the cabin should be valued at $150,000, because he believes the appraised value is unrealistic and that he will soon have to replace the water and septic systems for the cabin, at considerable cost. After some discussion, Linda and Abby are willing to go along with their brother’s suggestion as to the valuation of the cabin because they care more about their brother than they do about the money. The three siblings need to hire legal assistance to prepare and file the documents relating to the transfer of the cabin. Carl proposes that they hire Morton, a lawyer he has used for other legal matters over the last ten years. Morton reasonably believes that he could competently represent all three siblings. He explains the potential problems and the advantages and risks of joint representation and obtains their consent to the joint representation. None of the siblings has any questions or new proposals, and he does not provide any legal advice to them. Morton then prepares a document valuing the cabin at $150,000 for purposes of the transfer, just as the siblings agreed. Each sibling confirms that all of them still want him to be their attorney. May he represent all three siblings in the transaction?

In answering this question, use the facts of the previous question and assume that Morton has properly undertaken the representation of the three siblings.

In the course of his research before preparing the property transfer documents for Larry’s summer cabin, Morton discovers that Carl could obtain a reduction in tax liability for the cabin if the transfer of the cabin is postponed until next year. Morton knows that Linda and Abby are eager to conclude the transaction and that they will be able to earn more interest on funds paid to them by Carl if the payment is made this year instead of next year. Carl asks Morton whether he could postpone the transfer of the cabin until next year, slowing things down without revealing any reasons for the delay.

May Morton delay the transaction without disclosing the reasons to Carl’s sisters?

Jaiden, an assistant general counsel of Plenum, Inc., a pharmaceutical manufacturer, was asked to investigate whether the research division of Plenum was concealing reports of adverse reactions to the company’s best-selling product, Somalox, an anti-depressant. Two users of Somalox had contacted the general counsel’s office, reporting that they had submitted adverse reaction reports to the research division, as directed on the package insert, but that they had received no response from the company. One of these two users alleged that he had suffered hallucinations and suicidal ideation after taking Somalox, and that he had described these reactions in his earlier report. The other user reported that she was hospitalized for depression after having taken Somalox for several weeks. She also had reported this to the research division. The non-response is worrisome. The company policy is to acknowledge receipt of any adverse reaction reports and to assure users that the company will report adverse reactions to the Food and Drug Administration as required by law. The research division would route any adverse reaction reports through the general counsel’s office to the FDA, but none have been received or sent for Somalox.

Jaiden schedules a meeting with Bertha, the chief of the research division. Jaiden shows her the correspondence sent to the general counsel’s office by the two users and asks her to show him these and any other adverse reaction reports that the company has received. Bertha flushes and stammers in response to Jaiden’s query. “I am afraid that I have let a few of these slip through the cracks. Since you are the company’s lawyer, I can speak to you in confidence, right? Am I in trouble here?”

In answering Bertha’s questions, which of the following statements would Jaiden be best advised to make?

Nathan is a partner in the law firm of Pace and Gillespie, which represents Bostwick Corp., which is not publicly traded. The corporation manufactures boots. Nathan is a friend of David Bostwick, the chairman of his client’s board of directors, who owns 12 percent of the stock of the company. Nathan himself owns 3 percent of the stock, which he acquired long before Pace and Gillespie began representing Bostwick. Whenever there is a vacancy on the board, the board selects a replacement director. No directors are elected by the shareholders. On David’s recommendation, the board takes a formal vote and offers Nathan the opportunity to join the board. Nathan would like to accept, and neither he nor anyone on the board knows of any actual or apparent conflict of interest. Nathan is not willing to divest himself of his stock in the company. May Nathan accept the offer to join the board?

Eleanor represents Carmichael Inc., an energy company that sells electricity to residential and commercial customers. The corporation has five stockholders; four are Carmichael family members, and the fifth is an outside investor who provided start-up funds five years ago. In the course of her review of corporate documents, including e-mails exchanged among company personnel, Eleanor discovers that Marcus, the company’s Director of Information Technology, has been harvesting cell phone numbers from employees’ and customers’ e-mail messages that went through the company’s server and selling them to telemarketing companies. This information about Marcus’s activities, if it became public, would be very damaging to Carmichael Inc.’s reputation. She consults Carmichael’s president, Joseph Carmichael, who says that he has suspected that something like this might be happening, but that Eleanor should just leave it alone. Eleanor suspects that Joseph may be collaborating with Marcus and sharing the revenue from the telemarketing companies. Eleanor goes to a meeting of the board of directors that is attended only by Joseph and his wife and son, who are also members of the board, and Joseph again tells her to leave it alone. His wife and son concur. The company is regulated by the Public Service Commission. Eleanor continues to believe that exposure would hurt the company’s reputation and therefore its future profits.

Do the Rules require Eleanor to reveal the misconduct to the commission?

In answering this question, use the facts of the previous question. Must Eleanor withdraw from representation of Carmichael?

Lucille, a criminal defense lawyer, receives a frantic call from Sylvia, who states that her sister, Basia, who recently immigrated from Poland, has been arrested by state police for a drug violation, and that the bail hearing will be held in less than two hours. She asks Lucille to represent Basia at the bail hearing and in her criminal case. Lucille hires Magda, a Polish-speaking interpreter, and rushes to the courthouse, where she is able to briefly meet with Basia and represent her at the bail hearing. The judge sets the bail at $2,000. Sylvia is able to pay the bail amount, and Basia is released from prison that night. The next day, Lucille meets with Basia, with Magda interpreting, and informs her that her rate for legal services is $300 per hour. She states that that rate will be used to calculate the bill for the work that Lucille did on the bail hearing, and for future work that she will do on the criminal case. Basia agrees to the rate and Lucille begins work on her case. There is no other discussion of how much Basia will have to pay. At Basia’s hearing five months later, the arresting officer fails to appear, and the charges against Basia are dropped. The next month, Lucille sends Basia a bill for $1,800, including five hours of her work, plus $300 for Magda’s services. Is Lucille subject to discipline?

Spencer desires to represent his golfing partner Craig, who was injured on a ski slope that was apparently negligently maintained. Spencer tells Craig on the phone that he is willing to work on a contingent fee basis, under which Craig will be charged nothing unless Spencer obtains a settlement or wins a judgment. In either case, Spencer would charge 33 percent of any recovery after the deduction of the expenses of litigation. Spencer explains that Craig will not be responsible for any litigation expenses unless there is a recovery that exceeds the amount of the expenses. They discuss these points, and Craig agrees to the fee arrangement. Spencer contacts the ski slope’s insurer, and within three weeks, with Craig’s approval, the case is settled for $21,000. Spencer transmits $14,000 of that settlement to Craig. Spencer spent only four hours on the case. Was Spencer’s conduct proper?

Joseph is an immigrant who was recently denied asylum by the administrative appeals body that handles immigration cases. He hires Cyrus to appeal the decision to the U.S. Court of Appeals. Joseph knows that there is a $500 filing fee that he will have to pay. The appeal and fee are due tomorrow. Cyrus called Joseph and left a message, but Joseph did not call him back. He knows from prior conversations, however, that Joseph wants to appeal the decision. If he misses the filing deadline, Joseph will be barred from appealing. May Cyrus go ahead and file the appeal, paying the filing fee, with the expectation that Joseph would reimburse him?

Attorney Cherie represents Patience in a suit against her landlord for failure to do adequate remediation after a flood caused mold growth in the attic. Patience is an anthropologist who is writing a novel about a forensic anthropologist who solves murder mysteries. Patience is low on cash, but her upcoming book is expected to be a bestseller. Cherie proposes a fee arrangement in which Patience will pay Cherie a percentage of the royalties from her book as the fee for the landlord-tenant dispute. She discusses the advantages and disadvantages of this arrangement. Patience agrees to pay the legal fee in this manner. Cherie then sends Patience a letter that includes a clear explanation of the terms of the arrangement, which are fair and reasonable. The letter also advises Patience that it is desirable for her to seek independent legal advice before signing this agreement. A few weeks later, Patience signs the letter to indicate her consent.

May Cherie and Patience agree that the legal fee will consist of a percentage of Patience’s royalties from the book?

Barbara approaches attorney Morgan to ask for representation in a landlord/tenant suit. Morgan has not handled this type of case before. She is willing to take it on and will charge a much lower hourly rate than her normal rate, but only if Barbara agrees not to sue her for any mistake she might make. Morgan has accordingly drafted a retainer agreement with Barbara that Barbara waives any potential claims for malpractice against Morgan. Morgan has read Barbara this provision and explained it to her, and she has encouraged her orally to seek the advice of another lawyer about whether to hire Morgan on these terms. Barbara says that she fully understands the provision, that she does not need to consult another lawyer, and that she wants to sign the retainer agreement. May Morgan represent Barbara pursuant to this agreement?

Use the facts from the previous question. Suppose Morgan decides not to include the malpractice language in the retainer agreement, and both she and Barbara sign the agreement. Suppose further that Morgan indeed makes a serious mistake in the course of representation. Morgan and Barbara estimate that the mistake cost Barbara $9,500. Morgan would like to settle any malpractice claim that Barbara may have against her for $12,000 without litigation. Morgan does not wish to notify her malpractice insurer of the mistake, because then her rates would go up. She advises Barbara in writing to seek independent counsel, and she tells her she can take her time finding another lawyer. Barbara declines, saying she does not need another lawyer and that she agrees with the $12,000 settlement. May Morgan go forward with the settlement?

Attorney Eli has represented Jacques, an elderly but lucid man, in his legal matters for the past eight years. He continues to do so from time to time. The legal matters with which Eli has assisted Jacques have been minor; the most Jacques ever paid Eli was $1,500. One day, Jacques tells Eli that as a token of his appreciation for his years of service and friendship, he would like to give Eli his mint condition 1970 Chevrolet Chevelle, a car Eli knows to be worth over $70,000. Eli refers Jacques to another lawyer who can prepare the documents transferring the title to the vehicle to Eli. May Eli accept the gift?

Attorney Sebastian graduates from law school and starts his own criminal defense practice. He establishes an LLC for his practice and sets up a bank account for the office expenses. He also has a personal bank account. He decides to charge the relatively low fee of $200 per hour for his work. Within the first month of opening his practice, five different clients retain him in connection with their criminal matters. Pursuant to the retainer agreements, each client gives Sebastian a check for $4,000. Sebastian will earn $200 for each hour that he works. After 20 hours, he will bill each client for additional sums. At a minimum, how many additional bank accounts must Sebastian open?

Attorney Maria is a divorce lawyer. Several months ago, Maria represented Jillian in her divorce from her husband, Jack. At that time, Maria charged her an hourly fee of $400 per hour. The judge granted the divorce and ordered Jack to pay her $1,000 per month child support. Recently, Jillian came to Maria seeking help, because Jack has not been paying the child support for the past 6 months. She would like Maria to help her get the $6,000 that Jack owes her. Maria wishes to charge Jillian a contingent fee of 30 percent of the recovery. She discloses the fee and expense terms and receives Jillian’s informed consent in writing.

May Maria charge the contingent fee?

Ellen wants to hire Donna, an attorney, to handle her divorce case. Ellen works as a saleswoman in a department store, earning $26,000 a year. Donna proposes to charge a fee of $300 per hour, which is not an unusual hourly rate for divorce work in Ellen’s community, although some lawyers charge less. Donna discloses her fee and all expenses for which Ellen will be responsible in writing, and Ellen signs the writing. May Donna charge this fee?

Laila was a pedestrian who was hit by a car. Her best friend Joan, who is a nurse, visited her in the hospital. Neither Joan nor Laila knew the driver of the car. Joan later discussed the accident with her friend Craig, who is an attorney. Craig would like to represent Laila, on a contingent fee basis, in a claim against the driver of the car. Craig tells Joan that if she recommends him to Laila, and Laila retains him, Craig will pay Joan 10 percent of his share of any recovery that Laila collects. He does not tell Laila about this part of the arrangement. Is Craig subject to discipline?

Cindy, an indigent single mother of four, sought the help of Rona, an attorney, in filing an application for emergency food stamps. Rona agreed to help Cindy for a very low, fixed fee, which Cindy paid immediately. While the application is pending, Rona realizes that even if the application is approved, Cindy’s family will go hungry, because the state’s welfare benefits are so low. She wants to help Cindy by giving her $100 a month, for six months, out of her own funds. May she do so?

Geraldine, an attorney in a legal aid program, provides pro bono representation to Amber, who is indigent, disabled, and homeless, in litigation against Mike’s Job Counseling Service. Amber had paid $300 to Mike’s, which did not give her any job leads or help. Mike’s has recently been exposed in the local paper for not actually having helped anyone to get a job. Winter is approaching, and it has become increasingly difficult for Amber to live on the streets. She is in danger of freezing to death. All of the homeless shelters in the area are full. Geraldine cares about Amber and wants to keep her from freezing. Which of the following statements is correct?

Eduardo is a sole practitioner. He wants to handle the following matters and to make agreements with clients under which he would receive 20 percent of any recovery awarded to the client. In which of these cases would Eduardo be subject to discipline if he undertook the representation under those terms?

Sol practices tax law, but his expertise is in giving tax advice rather than handling litigation. Recently, Sol provided personal tax advice to businessman Bill. Bill then asked Sol to look at another tax matter involving a deduction denied by the Internal Revenue Service. Bill wants Sol to litigate the matter in the tax court. Sol mentioned to his friend Al, a litigator in a different firm, that one of his clients wants him to take on a litigation matter. Al responded, “Great! Just tell your client that you will do it with co-counsel. I will charge Bill 33 percent of the recovery, and I’ll give you half of what he pays us. We’ll both enter appearances and sign the papers, but you can leave everything to me. It will be as if we were in a law partnership together!” Sol believes that Al is an excellent litigator capable of doing a good job for Bill. Sol and Al agree to accept any liability for mistakes. The overall fee they intend to charge is reasonable. Bill gives his informed consent to Al’s association with Sol and to the proposed fee and to how Sol and Al will split it, and he signs a writing to that effect.

May Sol and Al enter into this split-fee arrangement?

Johann, a lawyer, is has recently taken Carly’s products liability case. They have agreed to a fee of $250/hour. Because he has only handled a few such cases, he wants to avoid being sued for malpractice. He would like Carly to sign a retainer agreement that provides that any malpractice claim that she wants to make against him has to be resolved by an arbitration rather than in a court. He drafts the retainer agreement and explains it to her but does not tell her that she may have a different lawyer advise her about the desirability of agreeing to the arbitration. Arbitration agreements between professional persons and their patients or clients are not prohibited by state law. She signs the agreement. Is Johann subject to discipline?

Milan graduated from law school, took the bar exam in state A, passed the exam, and was admitted to the bar in state A. He maintains active membership even though he is neither practicing law, nor living in state A. Milan bought a small computer consulting firm in neighboring state B and ran it successfully for a few years, earning a good living. Then Milan decided to sell the business. He found a buyer who purchased the business. In the course of their discussions about the business, Milan represented that the business had been twice as profitable as it actually was. After a few months of operating the business, the buyer sued Milan for damages for fraud and to rescind the contract. That lawsuit is pending. Is Milan subject to discipline in state A?

Danielle is a lawyer. Ted, the son of her brother Matthew, is very ill with a life-threatening condition. Ted must get a certain medication that costs $1,400 in the next 24 hours or else he will go into kidney failure. Matthew has no cash, but he will receive a large sum from the sale of his home in one week. Matthew has no other possible source of funds until then unless Danielle gives him a short-term loan. Danielle is flat broke (in fact, she is deeply in debt), but there is $120,000 in Danielle’s trust account. This amount is the proceeds of a personal injury settlement that Danielle will distribute to her client Van. She represented him on a pro bono basis, so she is not owed a fee from the settlement. Van is in prison for the next few years. Danielle has agreed to hold the funds for Van in the interim and to make mortgage payments on his house as they become due. Danielle lends Matthew $1,400 from this account for Ted’s medication. She is unable to ask for Van’s approval because he is in solitary confinement because he talked back to a prison guard and is not allowed to receive phone calls. Danielle, confident that Van would approve, sends him a letter explaining her intention to make the loan to her brother. A week later, Matthew receives the proceeds from the sale of his house. He repays Danielle, who replenishes the client trust account. Van later writes Danielle that he is glad that she was able to make the loan to her brother. There is no resulting delay in the distribution of the settlement funds to Van or in the making of mortgage payments. Is Danielle subject to discipline?

Pablo, a lawyer who used to work at the U.S. Department of Justice, now works at a private law firm. Which of the following rules does NOT apply to potential conflicts between Pablo’s duties to the U.S. government and his duties to any current clients?

Abdul, a lawyer, is employed by the United States Department of Labor and works in its Office of Civil Rights. He is also an experienced litigator. His neighbor, Blaine, has been having a dispute with the Internal Revenue Service, which claims that Blaine’s deduction for home office expenses is not valid and has withheld part of his claimed tax refund. Abdul wants to represent Blaine in a suit against the United States in the federal Tax Court to try to obtain the withheld portion of Blaine’s refund. He would not charge Blaine any fee. Also, Abdul has spoken to his supervisor in the Department of Labor, who has confirmed that the Department would have no objection to Abdul providing legal assistance to Blaine in his dispute with the Internal Revenue Service and will confirm this in writing. As a result, Abdul is confident that there is no conflict of interest, and he does not intend to advise Blaine that he should get a different lawyer, because any other lawyer would charge a substantial fee to Blaine. May Abdul represent Blaine in this litigation?

After she graduated from law school, Dania worked for the Securities and Exchange Commission (SEC) for three years. During that time, she worked on securing an indictment in a large securities case involving seven defendants who collaborated on an insider trading scheme. At the end of three years, she moved on to a position at one office of a large private law firm whose practice includes defense of securities fraud cases. A month after she started work at the firm, Dania learned that a partner in the firm was representing one of the defendants in the securities case that Dania had worked on while she was at the SEC. This did not emerge in the preliminary conflicts screening before she was hired because Dania’s work focused on three of the other defendants in the suit. The basic facts were the same, but the targets were different. What should the firm do to enable it to represent the defendant in the securities fraud case?

Paul, an associate justice of the United States Supreme Court owns a substantial amount of stock in a publicly traded corporation called Exrix, LLC. The Court grants certiorari to decide a class action suit brought by shareholders of Exrix. Paul has disclosed his stock ownership but is not planning to sell his stock. No party has made a recusal motion. Must Paul recuse himself pursuant to a code of judicial conduct?

In a state in which judges are elected, Damian Garner, the President of Garner Industries, a manufacturer of firearms, has donated $3,000 to the successful campaign of Ambrose Zoltan, who was elected as a judge of the state’s highest court. That contribution represented 2 percent of the campaign contributions that the judge received. All contributions were disclosed pursuant to the state’s campaign finance disclosure law.

A gun control group sued Garner Industries for violating the state’s gun control laws by manufacturing and selling guns with built-in silencers. The court ruled against Garner and it has appealed to the state supreme court, arguing that the gun control law is inconsistent with the Second Amendment. The gun control group filed a motion asking Judge Zoltan to recuse himself, but he denied the motion. Would Judge Zoltan’s participation in the adjudication of this case be unconstitutional?

Evelyn, a recently admitted attorney, is serving as a law clerk to Judge Leopold Osterman on the state court of appeals. The judge has heard the appeal in a contract dispute in which IGL Corp. has sued Mountain Hardware, Inc., for damages. Mountain Hardware was represented by the law firm of Westerfield & Pilson, which Evelyn worked for during her second summer in law school. She did not work on that dispute while she was at the firm, because the firm accepted it after she left the job, but Judge Osterman has asked her to write the opinion in the case. While she was working on the opinion, Margaret Pilson from Westerfield & Pilson emailed Evelyn, on her private email account, asking whether she would like to discuss joining the firm as an associate after she finished her clerkship. Evelyn wanted to take that job, so she told Judge Osterman about the email, and he said that it was fine to discuss a possible job with the firm. Evelyn and the firm then agreed on a starting salary of $95,000, and that she would begin work two weeks after her clerkship ended. A week later, Evelyn completed the opinion, which the judge adopted. It dismissed the case against Mountain Hardware. Is Evelyn subject to discipline?

Armand DuBois was elected as a state court judge seven years ago. This year, he is up for re-election. His state has adopted the Model Code of Judicial Conduct, which bars a candidate for judicial office from personally soliciting or accepting campaign contributions. A rule of the state supreme court provides that violation of the Code may be punished by that court’s judicial conduct committee, which may impose sanctions ranging from a reprimand to suspension of judicial duties. Judge DuBois personally accepted a $500 contribution from his close friend and tennis partner, Stanley Baskin. Is he subject to discipline by the judicial conduct committee?

Erin, a lawyer, had a motion that was scheduled to be argued on November 5. Another attorney, Manfred, represented her adversary. On October 31, Erin learned that her son’s surgery had been scheduled for November 5, and she wanted to be with her son on the day of the surgery. She tried to call Manfred to discuss rescheduling, but he was out of town and could not be reached that day. So without first notifying Manfred, she telephoned the judge’s clerk to find out whether the argument on the motion could be heard the following week. To her surprise, the judge picked up the phone and explained that he had answered because his clerk was at lunch. Erin explained the situation and asked the judge whether the argument could be scheduled for November 12. The judge checked his computer and advised that he could fit in the argument on that date, and he advised Erin to notify Manfred of her request and if Manfred had no objection, to telephone his clerk in a few hours. He said that his clerk would also send a notice to her and to Manfred, describing his conversation with Erin and notifying that in the absence of any objection, the hearing would be rescheduled as requested. Is Erin subject to discipline?

Winthrop, a judge, and his brother Leonard, a lawyer, have both been members, for many years, of the exclusive and private Antelope Club, one of the most prestigious clubs in their city. The club includes some lawyers and judges but it is not a club only for lawyers; its membership also includes business leaders, journalists, educators and others. The club has no openly gay members, and it recently voted that openly gay individuals are not eligible for membership. The club provides a social setting for meals, relaxation, golf and tennis. Neither Winthrop nor Leonard engage in any judicial or legal activities at the club. Who, if anyone, must resign from membership?

Attorney Ria represents criminal defendant Carl, who is charged with armed robbery. Carl is in jail pending his trial. During a meeting at the prison, Carl tells Ria that on the night of the alleged robbery, he was at a hockey game with his girlfriend. When Ria returns to her office, she does an Internet search and finds out that the hockey game actually took place on the night before the robbery, not the night of the robbery. Ria tells Carl this information during their next meeting, and Carl tells her he was mistaken. He says he went to the hockey game the night before the robbery, and on the night of the robbery, he was having dinner with his mother an hour away from where the robbery took place. Ria reasonably thinks that Carl probably is lying about the dinner with his mother. Without first counseling Carl to tell the truth, she refuses to allow Carl to testify about the dinner at his trial. Is her refusal proper?

Attorney Kristin is a state prosecutor, and she is prosecuting Oliver Burson for the murder of his ex-wife. Before the trial begins, a reporter asks to interview Kristin for a television report. Which of the following statements would Kristin be well-advised NOT to make during the interview?

Attorney Tito is a sole practitioner. He represents Laura, a criminal defendant charged with stealing a diamond necklace from Matteo. Matteo and Laura went on a few dates and then the relationship went sour. Laura claims that Matteo gave her the necklace on their second date. On the day of the jury trial, in the elevator on the way to the courtroom, Tito overhears Matteo telling his friend that he gave Laura the necklace, and that the only way he could get it back was to claim that she stole it. Tito has been preparing for the trial for weeks. Tito plans to continue to represent Laura and testify in the trial as to what he heard. He has a co-counsel who could take over the trial while Tito is testifying, but Tito is much better prepared and more experienced. The transfer of primary responsibility for the trial to another lawyer would work substantial hardship on Laura. May Tito continue to represent Laura and testify in the trial?

Angus hired Vojtech to file a lawsuit against Linkbook, a major social media outlet. He claimed that when Byron, the founder of the company, was just starting Linkbook, Angus made a small personal investment in the company ($1,000) and that in exchange for his investment, Byron promised that would receive 20 percent of the earnings of Linkbook. After Vojtech did some investigation, he obtained indisputable factual evidence that Angus’ claim was entirely fraudulent. Angus then admitted to Vojtech that his claim was baseless but asked Vojtech to press the claim anyway, because he thought that Linkbook would pay him something just to end the lawsuit. Vojtech declined to file the lawsuit and withdrew from representing Angus. Angus then hired a new lawyer, who filed a lawsuit against Byron and Linkbook. Vojtech has not informed either the lawyer who is now handling the suit or the judge who will try the case about Angus’s fraudulent claim, and he will not do so even if Angus gets a handsome settlement. Is he subject to discipline?

Athena practices law in a city of medium size. She specializes in trusts and estates and in elder law. For many years, Athena lived next door to Meredith, an elderly widow. Meredith lived with her middle-aged daughter Dora, but spent most of her time with her boyfriend, Sven. Athena did not do any legal work for Meredith, though she got to know her well. At Meredith’s request, a year ago Athena acted as one of two subscribing witnesses to Meredith’s most recent will. This new will replaced an earlier will which had left everything to Dora. The new will left $500,000 to Dora, $1,000,000 to Sven, and the rest of Meredith’s multi-million-dollar estate to charity. Meredith named her cousin Ernest as her executor. The other witness to the new will died in February.

Meredith died last week. Dora has announced that she plans to contest the will on the ground that Meredith was incompetent when she executed the will. Athena probably will be required to testify in the probate proceeding on the subject of Meredith’s competency at the time she signed the will. Ernest, the executor, has asked Athena to represent him and defend the will in the probate proceeding. Athena has never before represented Dora, Sven, or Ernest.

Athena wants to represent Ernest in probating the will, and also to testify truthfully that she knew Meredith well and that Meredith appeared to her to be competent. Is her proposed conduct proper?

Attorney Mort represents Julio, who was injured in an automobile accident caused by Yvonne. Julio has back pain and frequent, severe headaches. Julio is suing Yvonne and will soon have his deposition taken. When Mort interviewed Julio and asked him how frequently he had severe headaches, Julio said, “I don’t have them every day, and sometimes they aren’t so bad. But about four days a week, I wake up with a severe headache.” Mort told Julio that minimizing the frequency of his head pain would weaken his case. Julio asked Mort what he should say. Mort said, “Well you don’t have to say, unless you are asked, that you don’t have headaches every day, or that they aren’t so bad.” Julio said, “So, what should I say?” Mort said, “I understand that you wake up most mornings with severe headaches? Isn’t that right?” Julio said, “That’s right.” Mort said, “When I ask you about your headaches, you can say: ‘Most mornings, I wake up with severe headaches.’”

Julio testified in the deposition that he woke up most days with severe headaches, and he was not asked more questions about this subject. The case was settled shortly thereafter. However, Julio got into a dispute with Mort about the calculations of Mort’s fee, and Julio filed a bar complaint against Mort. During the investigation by the bar counsel’s office, Julio described how Mort had coached him to testify regarding his headaches. Is Mort subject to discipline for his conduct regarding Julio’s testimony?

Libby, a lawyer, represents Lawncare Enterprises, the defendant in a negligence case. Lawncare Enterprises manufactures power lawn mowers. Pierre, the plaintiff, had purchased a Model LC-15 Lawncare mower. One day when Pierre was operating the mower, the mower hit a small stone, which flew up and hit Pierre’s left eye, blinding that eye permanently. Pierre claims that Lawncare knew or should have known that the protective shield on the mower he used was too short to prevent an accident of this type. During preparation for trial, Libby asked Ira, Lawncare’s chief of customer relations, whether his department had received other complaints of stones or other small objects being thrown up during use of the Model LC-15. Ira said that the department had received more than two dozen such complaints, about half of which had involved minor injuries, but no serious injuries.

During the trial, Ira was asked on cross-examination whether his department had received any prior complaints of injuries resulting from the use of the Model LC-15. Ira replied that there had been two or three complaints of scratches from debris kicked up by the mower, but none of those were serious, and none of those incidents had resulted in litigation. Libby observed this testimony by Ira without betraying, through her expressions or otherwise, that it was inconsistent with what Ira had told her earlier about the number of injuries that had been reported.

A jury ruled in favor of Lawncare, and Pierre appealed. While she is working on the appeal, Libby visits the Lawncare factory and runs into Ira. She asks him why he had told her that about half of the two dozen complaints about the LC-15 resulted in injuries but then testified that there had been only two or three complaints of scratches. Ira replies that Lawncare’s general counsel had advised him to testify truthfully but to try to minimize how much Lawncare knew about prior injuries caused by the product. He added that he had been careful to say that there had been two or three complaints of scratches, without saying that those had been the only complaints of injuries.

What if anything should Libby do as a result of this disclosure?

Percy is a lawyer who is the Attorney General of a state in which abortion is legal. He is well known for his opposition to abortion and his advocacy for outlawing it. Dr. Amanda Belknap performed an abortion on a 10-year-old girl who had become pregnant. As she always did after performing an abortion, and as required by law, she reported the abortion to the State Medical Board. When the case attracted publicity, including angry protests from anti-abortion activists who wanted to make abortion illegal, Percy opened an investigation into Dr. Belknap’s conduct, sent a letter to the Medical Board asking it to find out whether Dr. Belknap had reported every abortion she had conducted, and immediately went on television to discuss the matter. The host of the show said that “Dr. Belknap has a history of failing to report abortions.” Percy said that he was disgusted by people like Dr. Belknap, “an abortion activist acting as a doctor, with a history of failing to report.” He said that his office was investigating her medical license and that he would be filing a formal complaint with the Medical Board. He filed such a complaint a few days later. Is Percy subject to discipline?

Maude, a lawyer, was retained by Anya, who lives in an assisted-living building for elderly persons. Anya noticed that many residents of the building were contracting respiratory infections. Anya has noticed that the ceiling tiles by some of the air vents in her apartment have turned black, an indicator of mold in the HVAC system. She suspected that Warner Management, Inc., which was running the building, was cutting costs, and had not been servicing the air conditioning and heating systems often enough. Regular servicing and changing the filters quarterly is necessary to maintain clean indoor air.

Maude wants to question Xavier, the Warner employee who services the heating and air conditioning systems and changes the filters at Anya’s building. Under the substantive law of the jurisdiction, if Xavier reveals that he failed to service the system or change the filters regularly, Warner Management could be liable for his negligence on the theory of respondeat superior. Maude knows that Warner is represented by attorney Peter in all matters related to Anya’s building. Maude is planning to tell Xavier that she represents Anya but is not planning to tell him that he has a right to consult with counsel of his choice. Also, she does not plan to ask Peter’s permission to question Xavier, or even to notify Peter that she is interviewing him. May she question Xavier without getting Peter’s permission?

The Packard Management Company manages an apartment building in which Manuel is a tenant. Tom, a lawyer, handles all legal matters for Packard. Manuel has not paid his rent for three months. Packard wants to evict him. Manuel has called Packard several times to complain about minor deficiencies in the building’s services but has never asserted that he was declining to pay rent because of the inadequate services. Packard’s policy directs Tom to make one effort to negotiate with a non-paying tenant for full payment within 30 days before commencing eviction proceedings.

Tom’s friend Ivan is Manuel’s boss at Ecosystem, Inc. Ivan told Tom last week that Manuel has hired a lawyer named Serena to sue Ecosystem for race discrimination. Ecosystem has no connection to Packard.

When Tom calls Manuel, he is planning to identify himself as a lawyer for Packard at the beginning of the call, but he is not planning to ask Manuel whether he is being represented by counsel with respect to his tenancy, or to advise Manuel that he has a right not to speak to Tom or to be represented by a lawyer in connection with the threatened eviction. After identifying himself, Tom is planning to ask why Manuel hasn’t paid his rent and then to negotiate for prompt payment. May Tom have this conversation with Manuel?

Sam, a lawyer, represents Alan Pauly, a tall man who is in jail facing assault charges stemming from a fight in a bar with a short man, Don. Sam is investigating the facts. The police report mentions no witnesses other than the victim. The bartender did not see the fight but tells Sam that Toby was in the bar that Saturday night. Sam goes to Toby’s house. He knocks on the door. Toby answers. After Sam confirms that the man who answered the door is Toby, the conversation goes like this:

Sam: I am a lawyer for Alan Pauly, and I am investigating the fight at Harry’s Bar two weeks ago this Saturday. I understand that you were there that night. Toby: That’s right. It was really awful. Sam: Is a lawyer representing you in connection with this matter? Toby: No, I was not involved in the fight. Sam: Could you tell me what happened? Toby: There were these two guys. They had been drinking a lot. Then they started arguing. One was tall and the other was short. Sam: Where were they and where were you? Toby: They were at a table. I was on the barstool nearest to them. Sam: Could you hear what they were saying? Toby: I might have, but I can’t remember. But I remember the fistfight well enough. I saw that pretty clearly. Sam: Have you talked to anyone else about this? Toby: No, I thought about going down to your station, but I didn’t want to get involved with police. Sam wants to ask Toby who threw the first punch, the tall man or the short one. Would he be subject to discipline if that is the next thing he does?

Tomas, an attorney, represented the IWT Corporation, which fired a woman named Celinda. IWT claims that Celinda’s written work was sloppy; Celinda claimed that IWT simply wanted to give the job to a younger person. She wanted her job back or a substantial cash settlement. Pursuant to a clause in Celinda’s employment contract, her dispute had to be resolved through arbitration. While the arbitration proceeding was pending, IWT’s general counsel read the emails that Celinda had sent to her lawyer through the company’s email system, from the time that Celinda received notice that she was being fired until a month later, when she actually departed. IWT’s 250-page office handbook, a copy of which was given to Celinda two years ago, says on page 138 that the e-mail system belongs to the company and that information sent over the system may be read or disclosed by company officials. One of Celinda’s e-mails said, “I know that my work isn’t as good as it used to be, and that I have been making a lot of mistakes this year. So maybe they do have good reason to fire me after all.” IWT’s general counsel sent a copy of this e-mail to Tomas. Tomas did not tell Celinda’s lawyer that he had a copy of the email, planning to use it to surprise her during the arbitration proceeding. Is Tomas subject to discipline?

Bobby, a former employee of Talmart, Inc., has retained Ashley to bring an employment discrimination action against Talmart, claiming that his firing last year was unlawful discrimination on the basis of religion. Ashley is investigating the matter but has not yet initiated a suit. Ashley wants to interview Chi, a former Talmart employee who left the company two years ago. Chi was Talmart’s Vice President for Human Resources; she was responsible for hiring, promotion, and discharge of employees.

Bobby told Ashley that he was fired after he complained about Talmart’s policy prohibiting employees from wearing turbans while at work. Bobby says his Sikh faith requires him to wear a turban.

Ashley wants to contact Chi, and ask questions about Talmart’s turban policy, without first informing Ned, the lawyer who Ashley knows represents Talmart in all employment-related litigation. Assuming that Ashley would identify herself to Chi as Bobby’s lawyer, may she interview Chi without seeking permission from Talmart’s lawyer?

Donald was suspected of having robbed a liquor store. Shortly after he was arrested, he demanded to see his lawyer, Craig. The police did not attempt to question Donald, and Craig arranged for him to be released on bail at his arraignment, after Donald was read the charges filed against him and given a court date. Craig filed papers informing the court and the prosecutor’s office that he would be representing Donald in the matter. Brenda, a prosecutor, was assigned responsibility for Donald’s case. A state statute authorizes prosecutors to investigate criminal cases by questioning witnesses or authorizing police officials to do so up to the point at which charges are filed. Brenda visited Donald’s home a week after he was released, identified herself as the prosecutor in the case, and asked if she might ask him some questions. Donald said he would answer her questions because he was innocent of the charges and therefore had nothing to hide. Brenda did not make any false or misleading statements to Donald. On the basis of information from his answers, Brenda was able to contact and interview other witnesses. She did not offer into evidence any information that she received from Donald. Is Brenda subject to discipline?

Five years ago, Tammy was murdered at night while alone in her home. Her boyfriend Ray, with whom she had been quarreling, was accused of the crime. At first he claimed innocence and said she must have been killed by an intruding stranger. Initially, he declined the opportunity to consult a lawyer. After 12 hours of police questioning, he confessed to the crime. Subsequently, he retained Ming, a lawyer. Ray was convicted, largely on the basis of his confession, and was sentenced to 40 years in prison. Ray is now in prison.

Daniel, a prosecutor in the county where Ray was tried, recently negotiated a plea bargain with the attorney for Burt, another man who was alleged to have committed several murders. Burt agreed to plead guilty to manslaughter and to receive a life sentence to avoid being charged with a capital offense. Part of the deal is that he would provide Daniel with details on his other crimes. During those discussions, Burt revealed that he had robbed and killed Tammy. He had dated her a year earlier, but she had rejected him in favor of Ray. Burt consents to provide a sample of his blood, which matches the blood that was found in Tammy’s house the day after the murder. Ray’s blood had not been found in the house. What if anything must Daniel do?

Herman was mugged in a dark alley, and his wallet, which contained $200 in $20 bills, was stolen. Moments after the assailant fled with his money, Herman spotted a police officer and reported the crime. Herman described the assailant as a male who had dark hair, was of medium height, and wore a dark colored shirt and white sneakers. He said the assailant had showed him a knife. The officer alerted other officers in the vicinity by radio. An officer arrested John three blocks away. John has dark hair and is of medium height. He was wearing a dark blue shirt and white sneakers. When searched, he was found to have $454 in cash in his pocket, including eight twenty dollar bills. He was not in possession of a knife. When arrested, John acted suspiciously and refused to answer any questions. He has not confessed. Herman’s wallet was never found, and no knife was found in the vicinity. The case was assigned to Marcella, a prosecutor. Marcella investigates but discovers no additional facts. She believes that John is guilty, though she doubts that a jury would find him guilty beyond a reasonable doubt. In fact, she is uncertain whether the charge is even supported by probable cause. Is it proper for Marcella to charge John with robbery?

Attorney Lilith represents Opal in a custody case against Opal’s ex-husband, Claude. Lilith knows that Claude is represented by another lawyer, Oscar. Claude enters Lilith’s office one day and tells her that he wants to speak with her about Opal’s treatment of their children. Lilith says, “As you know, Oscar represents you in this matter.” Claude says, “I know that, but I want to talk to you anyway.” May Lilith allow Claude to continue?

Yvonne was seriously injured in a parking lot accident at the Woodbridge Supermarket, when a Woodbridge delivery truck, driven by a Woodbridge employee, rammed her car. The Woodbridge driver claimed, at the time, that Yvonne drove right in front of him and that the accident was her fault. Yvonne hired Kate, a lawyer, to sue the Supermarket. Kate has learned that Nora, a cashier employed by Woodbridge, witnessed the accident because she was standing outside the store during a ten-minute work break. Nora has no responsibility for driving delivery trucks or maintaining the parking lot. Kate wants to interview Nora, but she suspects that Woodbridge’s lawyers (if asked) would decline permission for her to conduct this interview and would insist that she initiate formal discovery. Kate does not want to incur the expense of discovery without having an idea of what Nora would say. Kate is not planning to give Woodbridge’s lawyers any prior notice that she is interviewing Nora, much less ask their permission, and she is not planning to advise Nora that she has a right to consult either Woodbridge’s lawyers or a lawyer of her own choosing before talking to Kate. May Kate interview Nora, away from Woodbridge’s premises, under these conditions?

Which one of the following statements is correct?

Hussain, a lawyer, represents Surety, Inc., an automobile insurance company that insures rental car companies. Lee was seriously injured when the brakes on his rental car failed. Through his lawyer, Esther, Lee sued the rental car company, and pursuant to his agreement with Surety, Hussain represented the defendant in the lawsuit. Surety’s investigation revealed that the brakes were faulty and the rental car company is therefore liable. Hussain knew that Esther had not done her own forensic investigation of the brakes. Surety authorized Hussain to offer Lee up to $500,000 to settle the suit. When Esther and Hussain met to explore whether a negotiated settlement was possible, Esther said her client was willing to accept a settlement of $400,000. Hussain said, “I know that my client won’t pay a penny more than $300,000.” Is Hussain subject to discipline for lying to Esther?

Assume that the lawyer’s primary motive for each of the following is to earn money. Which one is prohibited by the Model Rules?

Attorney Betsy has more clients than she can handle and wants to expand her law firm. She would like to hire two associates but does not have enough capital to do so. Banks will not loan her enough money to pay the associates for the year or so until their fees would cover their own costs. But Betsy’s father Roberto, who is a successful investment banker and not a lawyer, would like to provide Betsy with one million dollars to help her expand her business. In return, Roberto would become a limited partner of Betsy, entitled to receive two percent of all of the gross profits of the firm for as long as it exists. Betsy would like to enter into this agreement with Roberto. She and Roberto agree that Roberto will never try to influence Betsy’s judgment in rendering legal services. May Betsy enter into this agreement?

Esteban, a lawyer in State A with a general practice, regularly represents and advises Patrick who lives just a few miles away in State B. Patrick owns and operates a hunting supply store in State A. For years, Esteban has advised him about employment and tax issues related to his business. Patrick has amassed enough capital to start a second business, a wilderness tour company, and he decided to locate this enterprise near his home in State B. He asked Esteban if he would meet with him once at the new office to advise him on State B tax and real estate law to assist him in launching the new business. Esteban has the knowledge to provide competent legal advice to Patrick on these issues even though he is not a member of the bar of State B. He would not charge Patrick fees that were higher than those permitted by State B. Esteban has not mentioned to Patrick that he is not licensed in State B; it did not cross his mind. Would Esteban be subject to discipline if he provides legal advice to Patrick as Patrick requests?

Ian, a lawyer, is trying to build up his client base. He frequently reads in his local newspaper about automobile accidents in which pedestrians are injured. He would like to visit the victims, either at hospitals or their homes, within a few days after the accidents, before insurance adjusters contact those potential plaintiffs and persuade them to sign settlements in which they receive only small amounts of compensation. He would represent these clients on a contingent-fee basis. Ian knows that the ethics code imposes some restrictions on solicitation, but he thinks he has a right to reach out to these victims before the insurance adjusters get to them. Assuming that none of the victims are people known to Ian or his partners, and that none of them are lawyers, may Ian visit the victims as he desires?

Margery owns and manages a successful law practice. Her specialty is representing plaintiffs in employment discrimination cases alleging gender discrimination. Recently, she has gotten referrals of a substantial number of cases involving people who have suffered sexual harassment or sexual assault in the workplace. At the end of every calendar year, Margery directs her office manager to send a $50 bottle of champagne to every individual who referred a new client to her practice that year to thank them for sending clients her way. The recipients include other lawyers, clients, former clients, and friends, relatives, or any others who have referred matters to her.

Giles, an estate planning lawyer, referred a prospective client to Margery whom she represented in an administrative matter. Giles, who does not drink alcohol, received a bottle of champagne from Margery. Giles files a complaint against Margery with the local bar counsel for giving gifts to get business. Is Margery subject to discipline?

Attorney Suzette is a solo practitioner in a small town. She specializes in medical malpractice cases and has handled hundreds of such cases over the past two decades. Suzette’s friend Gunter hosts a local radio program, and he offers Suzette a 15-second advertising spot in his program. Suzette’s ad reads, in its entirety: “Have you or has someone you know been hurt by a doctor’s negligence? Attorney Suzette Bellows can help. Bellows specializes in medical malpractice cases. Call (555) DOC-HELP now for a free consultation.” Gunter plays a recording of the ad on the radio. Is Suzette subject to discipline?

Samir practices family law. His clients often have problems that might better be addressed by a marital counselor, who might be able to help a divorcing couple to reconcile or to separate more amicably. He wants to form a partnership with his cousin Veena, a licensed social worker. They would share a suite of offices, and a client could receive services from either or both of them, as the client preferred. Samir and Veena want to share the fees earned by either of them, in proportion to the work done by each. Samir will take steps to ensure that Veena complies with the Rules of Professional Conduct. Veena will not direct or regulate Samir’s professional judgment in rendering legal services, and all clients will be informed that only Samir is licensed to practice law. However, Samir does not plan to seek each client’s written consent to receive legal services from a partnership that includes a social worker who is not also a lawyer. May they create this partnership?

Duncan, an attorney, would like to meet the pro bono standard in the rules. However, he is extremely busy and barely earning enough in fees from his paying clients to pay his bills and feed his family. Some of his clients earn only the minimum wage and their family incomes put them below the federal poverty level. If all Duncan does to provide pro bono services is to devote 40 hours of legal services per year to such clients at a 50 percent discount from his usual fee, would he be subject to discipline?

Troy goes to see Samantha, an attorney, to see if she can help him with a legal problem. Troy worked as a salesperson for three years for Glory Vacations, Inc., which sells vacation timeshares. Heidi, one of Glory’s customers, has sued both Glory and Troy for $50,000, alleging that Troy made fraudulent statements while selling her some timeshare property. Upon receiving the summons, Glory fired Troy and cross-claimed against Troy, claiming that any fraud was unauthorized and is Troy’s fault. Troy says he is being scapegoated and never made any false statements.

Troy wants Samantha to represent him. He is now unemployed and has very little money. Samantha cannot afford to accept him as a pro bono client. Troy says that he has been turned down by several other lawyers because of his financial situation. He owns a house, so the local legal services office will not represent him. Without representation, Troy, whose formal education ended after high school, will be unable to defend himself effectively. He asks Samantha whether he has a due process right to have the court appoint a lawyer to represent him without charge.

What should Samantha say?

Julie works for a federal government agency. Agency regulations prohibit lawyers employed by the agency from representing individual clients. Julie wants to fulfill the aspirational requirements of pro bono service as stated in Rule 6.1. May she fulfill the Rule’s aspirational requirements without quitting her job?

Mindy represents RenTV, which leases television sets by the month to people who do not have enough money to buy televisions. Some of its customers, represented by Ross, brought a class action against it for failure to comply with the federal Truth-in-Lending Act. That law provides that the lawyer for a prevailing plaintiff may recover attorney’s fees from the defendant in addition to the judgment. RenTV is willing to pay $120,000 to the members of the class to settle the suit. But it does not want any of the settlement money to be paid to Ross, the plaintiff’s attorney, because Mindy and RenTV believe that he will just use the money to bring more troublesome litigation against RenTV or other companies owned by RenTV’s parent company. May Mindy condition the settlement offer on Ross’s waiver of attorney fees?

Warren, a lawyer, represented Carrie, a state university student, in a lawsuit challenging her state’s restrictive voter identification law. The retainer agreement specifies that Warren would not charge Carrie a fee but may keep, as his fee, any counsel fees that the court requires the state to pay.

A state law allows out-of-state students to vote, but it requires voters to supply photo identification. Pursuant to regulation, the state accepts many forms of picture identification, including passports, in-state driver’s licenses, and gun licenses, but it does not accept out-of-state driver’s licenses. Carrie only has an out-of-state driver’s license. After Warren filed a civil rights suit in federal court on her behalf, the state changed its regulation to allow out-of-state driver’s licenses to qualify as identification. The state attorney general explained to the press, “We didn’t think that the court would sustain our regulation.” Warren has signed an agreement with the state attorney general in which he agreed to withdraw the lawsuit and the attorney general agreed, on behalf of the state, to accept out-of-state driver’s licenses as photo identification for purposes of voting for at least 25 years. Now Warren plans to request the court to award him counsel fees based on the time he spent researching the law and filing the suit.

Should he expect to obtain court-awarded fees?

Amar, a lawyer, has earned an undergraduate degree, a social work degree, a law degree, and an LL.M. degree. He now owes $260,000 in federal student loans, the last of which he obtained in 2016. He takes a job at his county’s legal aid office. He enjoys the work there and can imagine working there, or in similar public service employment, indefinitely. But his salary is only $42,000 a year before taxes. He can’t afford to make his monthly student loan payments on a standard ten-year repayment plan, or even on an extended 30-year repayment plan. He has an offer from a small law firm that would pay $54,000 a year, but the work would involve a lot of drudgery and be much less interesting than his legal aid job. What is his best option?

Pablo is a “notario,” a non-lawyer who helps Spanish-speaking low-income undocumented immigrants with their immigration problems. He charges much less for legal advice than a lawyer would charge; in fact, his clients are so poor that they could not afford to pay any lawyer for the help that Pablo provides. He is committed to serving his community. One day, Pablo telephones Ann, an immigration lawyer he met at a party. Ann and Pablo are friendly because both of them serve truly indigent clients for no charge at all. Pablo says, “I’ve got a guy in my office, from Honduras, who wants to apply for asylum, but he has two misdemeanor convictions for possession of drug paraphernalia, for which he was sentenced, in each case, to a month in jail. He wants to know whether that is an absolute bar to getting asylum, in which case he would decide not to apply. What’s the answer?” Ann has all the clients she wants at present and does not want to suggest that the man become her client. Which of the following responses is best?

A client hired an attorney to handle several real estate transactions. Once the representation was underway, the client explained that the transactions are all part of a money laundering scheme, and that the money ultimately is being used to fund terrorist activities. May the attorney continue with the representation, if each individual transaction appears to be technically legal?

Attorney Adkins had an exceptionally successful law practice, and she was able to charge her clients higher fees than other lawyers in the area. In fact, she had become one of the wealthiest lawyers in her state. One day, a judge called Attorney Adkins and requested that she accept a case and represent an indigent defendant whose case was before his court. The judge explained that he wanted to appoint Attorney Adkins to represent this defendant because his case was unusually complicated, and Attorney Adkins had a stellar reputation in the legal community for her skills and abilities. Attorney Adkins thanked the judge for the compliment but explained that she would have to decline the appointment because the court paid fees for indigent defense that were far lower than what she would normally charge her clients. The judge was indignant and reported Attorney Adkins to the state disciplinary authority. Could Attorney Adkins be subject to discipline for declining the case, given these facts?

Attorney Cabot, a partner at Big Firm, attended a networking reception. She found herself in conversation with a former law school classmate who was a managing lawyer at Boutique Firm. After a few drinks, the other lawyer started bragging about how the advantage of being managing partner at a smaller firm was that she was able to manipulate her firm’s bookkeeping to understate the earnings of the firm and the salaries of the lawyers there for purposes of tax reporting. Attorney Cabot listened to this story and felt a mix of envy and disgust because it sounded lucrative but illegal. She kept the information in mind and gossiped about it to some of her friends, but she took no action to report the other lawyer to the authorities. Could Attorney Cabot be subject to discipline for not reporting this information to the state bar disciplinary authorities?

A former client sued Attorney Andrews for legal malpractice, alleging that Andrews improperly withdrew from the representation on the eve of trial, thereby harming the client. Attorney Andrews claimed in defense that her withdrawal was due to an unforeseen conflict of interest that arose after the representation was underway, and that the conflict was serious enough to compel withdrawal from the representation. The client insists that there was no real conflict of interest that could have required Attorney Andrews’ abrupt withdrawal. Should a judge allow expert testimony to help persuade the factfinder that the state’s ethical rules concerning conflicts of interest indeed required withdrawal?

Mr. Barrows asked Big Bank for a loan using farm land and farm machinery, which Barrows claims to own, as a security interest. Big Bank had a lending policy that required borrowers to provide at the closing a lawyer’s opinion letter (from the borrower’s lawyer) that Big Bank’s new mortgage lien on the security property will have priority to any other recorded liens. Barrows hired Attorney Abrams to provide the opinion letter. The letter that Attorney Abrams provided met Big Bank’s requirements, but it included a disclaimer that the attorney has neither physically inspected the property nor investigated the state of the record title with respect to the mortgaged property, but that instead he had relied on the preliminary title report of a title-insurance company to the effect that there are no other liens on the property and that title to the property is vested in the client. After the closing, it turned out that a third party had previously acquired rights in the property by adverse possession. Worse, the adverse possessor had constructed some structures on the property that resulted in the filing of other contractor’s and seller’s liens on the property after the date of the preliminary title report. Attorney Abrams did not know any of this when he drafted the opinion. Which of the following is correct, based on these facts?

An attorney has no litigation experience because she exclusively handles business transactional work. The attorney has represented a certain client in a number of her business transactions. In one instance, the attorney prepared a detailed non-compete agreement for the client to use with a nationally known mathematician whom the client hired to work on the client’s predictive coding algorithms. After signing the agreement and working with the client’s company for a short period of time, the mathematician left the client’s company and began working for Client’s main business rival, apparently in violation of the non-compete agreement. The client asked the attorney to bring an enforcement action against the mathematician. The attorney then declined to represent the client in the litigation. The attorney reminded the client that their previous retainer agreement pertaining to the non-compete agreement specifically stated that the attorney’s representation would include only the drafting and related transactional work and would not include handling litigation to enforce or nullify the non-compete agreement. Would the attorney be subject to discipline for including this provision in her agreement to represent the client?

After being served with process in a personal injury action, a business owner made an appointment with a local attorney. The business owner met with the attorney and explained that she needed defense counsel for the personal injury suit. The attorney explained that she only handled commercial real estate litigation and probably had too many cases pending to agree to handle another matter, especially one involving an unfamiliar type of litigation. Nevertheless, the attorney said she would look into it, think it over, and let the business owner know if she could provide the representation but that she was disinclined to take the case. The business owner left the firm and notified the plaintiff’s lawyers that they should direct all further communication to the attorney. Has an attorney-client relationship been formed between the business owner and the attorney?

An attorney helps pro se litigants in divorce and custody matters by assisting them in completing self-help forms (court filings) for a nominal fee, giving advice, and reviewing completed forms before the litigants file the forms. To avoid misunderstandings, the attorney first requires each pro se litigant to sign a written disclaimer providing that no attorney-client relationship exists: “I understand that Attorney ____ has no legal or ethical obligation to provide legal representation to me in this matter.” Does an attorney-client relationship exist in these circumstances, even though the pro se litigant signed a form acknowledging that no legal representation will follow?

An attorney, a solo practitioner who had recently passed the bar exam, accepted a client’s case for a flat fee of $3,000. The attorney's contract included a statement in underlined and bold print that stated the entire fee is non-refundable regardless of the outcome of the case or whether the client continued to retain the attorney through the finalization of the case. After several weeks with no movement on the case by the attorney, the client fired the attorney and hired other counsel to represent him on this case. The client sent a request in writing for reimbursement of the retainer. The attorney responded to the client by stating the funds are non-refundable and refused to refund the client. Were the attorney’s actions proper?

A client retained an attorney to handle a criminal matter. One Friday afternoon, the client delivered a check to the attorney’s office. The amount of the check only covered the work the attorney anticipated completing the following Monday. The following Monday was a banking holiday, so if the attorney deposited the retainer check into his client trust account on Friday afternoon, he would not have had access to the funds until Tuesday. The attorney therefore deposited the client’s check into his business checking account and paid himself with those funds on Friday before the firm closed. According to the Model Rules of Professional Conduct, did the attorney violate his ethical duty to his client by depositing the funds in this way?

Late one afternoon on the day before a major holiday, an attorney received a small settlement check for a client from the opposing party. All the support staff in the attorney’s office had already gone home, and the office was to stay closed until the next week. The attorney was rushing to catch a flight to Europe, where she planned to spend the holidays with her family. The next week, when the attorney returned and the office reopened, she promptly notified the client that the check had arrived. Did the attorney violate the ethical rules for this delay?

A defendant in a business-related lawsuit hires an attorney to represent him in the matter. The plaintiff is one of the client’s vendors. The attorney explains that she needs $10,000 from the client at the outset of the representation, $2,000 of which is a non-refundable availability retainer, with the remainder to be used to cover expenses, court costs, and the attorney’s hourly fees. These fees, costs, and expenses will be deducted as they accrue throughout the representation. Should more funds prove necessary, the client can provide more at the time; if any of the original $10,000 remains unused at the end of the representation, the attorney will refund the balance to the client. The client provides a check for $10,000 that the attorney deposits in his firm’s primary bank account, carefully noting the deposit in the bank ledger and using the funds exactly as described. The attorney immediately used $2,000 to pay the monthly rent for her office space and began her representation of the client in the matter. The matter settled quickly, and the attorney returned $3,000 in unused funds to the client, with a full accounting of the costs, fees, and expenses deducted. Is the attorney subject to discipline?

A parent retains an attorney to represent a defendant, who is the parent’s 16-year-old child accused of shoplifting. Because the parent is paying for his services and because the defendant is a minor, the attorney generally communicates with the parent about the proceedings, options for disposing of the case, and other case-related issues. After speaking with the parent about a plea deal that would allow the defendant to do several community service hours and have the case dismissed, the parent advises the attorney that the defendant will take the deal. Attorney contacts the prosecutor who sends the paperwork for the defendant to complete and then cancels the court appearance, advising the court that a plea deal has been reached. Were the attorney’s actions proper?

An attorney represented a defendant who faced charges of assault causing bodily injury. The client recounted the events that led to the charges, and the attorney concluded that the client did not commit the assault. The attorney assured the client that he defeated such charges against other clients in the past. The client asked the attorney to get him the best possible plea deal and explained that he did not want to take the case to trial. The attorney contacted the district attorney, who offered a reasonable plea deal for attorney’s client, but it included some jail time. The attorney immediately refused the offer and told the client that they would be going to trial because the district attorney did not offer a reasonable plea. Is the attorney subject to discipline?

An attorney represented a defendant in a criminal case involving serious felony charges. After the defendant rejected all proffered plea bargains from the prosecutor, he insisted upon a jury trial and volunteered to testify at his trial to assert his innocence. The attorney knew that it would be a strategic mistake for his client to testify, for several reasons. First, the defendant had initially confessed to the crime, but the attorney managed to have the confession excluded due to a technical defect in the Miranda warnings. The attorney was now worried that the otherwise excluded confession would become admissible for impeachment purposes if the client testified and presented a contradictory version of the facts. The defendant also had a long record of prior convictions involving fraud and larceny, which would otherwise be inadmissible at trial but would become admissible to impeach the defendant’s credibility if he testified. Even worse, the attorney had confidential information that the client committed several related crimes to those charged in the case, and the prosecutor might elicit testimony implicating the client in these additional crimes during cross-examination. The prosecutor in the case was notorious for aggressive cross-examination of witnesses at trial and even teaches special training courses to other litigators on how to conduct merciless, devastating cross-examination. Finally, the client is not very articulate; he constantly uses street slang, gratuitous profanity, and incorrect grammar when speaking. This conduct was likely to alienate some jurors. The attorney explained all of this to the defendant, and then reminded the defendant that he already rejected several generous plea offers and would forfeit any chance of winning at trial due to his insistence about testifying. The attorney concluded by saying, “There is no way I will allow you to testify in this case; it would be malpractice on my part.” The client understood this to mean that he had no choice, so he gave up. The trial went well and the jury acquitted the defendant of all charges. Would the attorney be subject to discipline under these circumstances?

A husband and wife met with an attorney about obtaining legal guardianship and power-of-attorney for the wife’s elderly mother, who was suffering from early-stage senile dementia. The couple needed to be able to help manage the assets and finances of the wife’s elderly mother because they had taken her into their home. The attorney explained that he would charge a flat fee for his legal services. The couple agreed to pay a reasonable fee. As the couple was leaving the meeting, the attorney added that he would formalize their fee arrangement in a written document and send them a copy. Unfortunately, an urgent issue in another unrelated case distracted him so he forgot to prepare a written fee agreement. Eventually, the attorney completed and filed the necessary documents to place the elderly mother under the legal custodial care of the couple. At the conclusion of the matter, the attorney sent the couple a bill. The bill included the lawyer’s flat fee, as the couple had agreed, plus administrative filing fees and court costs. The amounts were accurate and reasonable. Could attorney be subject to discipline for his actions?

A recent law school graduate, after obtaining a license to practice as an attorney, moved to a new town and opened a practice there. A prospective client met with the attorney to discuss representation in a personal injury lawsuit against the town’s largest company and major employer. The municipal government and local hospital would be added as co-defendants. The prospective client explained that she had already met with every other plaintiff’s firm in the town but that each one declined her case because it presented conflicts of interest for them. The attorney quickly realized that he was likely the only lawyer in town who could represent this client in the matter, having no conflicts of interest with other clients, due to the firm being a new practice. Seeing an opportunity, the attorney offered to represent this client for four times the usual fee that was customary in the locality for regular legal services. In addition, the attorney explained that the client would have to pay a large non-refundable retainer sum up front, against which the attorney would draw fees. Finally, the client would have to reimburse the attorney for every penny of actual expenses and costs incurred in-house, such as photocopies, plus any costs and expenses incurred from outside services providers, such as court reporters or experts. The client was astonished at the exorbitant fees, but she reluctantly agreed because she felt she had no real choice. the attorney did memorialize their agreement in writing. Is the attorney subject to discipline for this fee agreement?

An attorney agreed to represent a client, a foreign national living in the United States. The client explained to Attorney that he was a business owner who operated several small grocery stores catering to immigrants from the client’s home country. Nothing seemed suspicious to Attorney until they were about to consummate a deal on the purchase of a small parcel of commercial real estate, and Client insisted on paying with cash, arriving at the closing with duffle bags containing bundles of twenty-dollar bills. The parties completed the sale and title transferred to one of client’s businesses, a nondescript shell corporation. The attorney became suspicious that the client might be laundering money through such transactions. Would it be proper for the attorney to inform the FBI about the transaction without the client’s consent?

A convicted felon was serving a 30-year sentence in prison. The convict discharged the lawyer who lost his criminal trial and recently hired a new attorney to handle his appeal in federal circuit court. This attorney filed a preliminary notice of appeal, but briefs in the appeal are not due for several months and oral argument will not occur until two or three months thereafter. Unexpectedly, the attorney then received court appointments to handle last-minute appeals in three high-profile death penalty cases in which the executions are on the schedule for the next few weeks. At the same time, the attorney also took on a complex class action suit by prisoners against the state Department of Corrections, which if successful would pay the attorney several million dollars in statutory legal fees. Given the urgency of the death penalty cases and the potential fees from the class action suit, the attorney decides to transfer defendant’s appeal of his life sentence to another competent lawyer, who is glad to take on the case. The client refused to grant the attorney permission to withdraw as counsel, though. The attorney then mailed a letter to the client explaining that he was withdrawing from the case, included all documents and papers relating to the representation, and filed a motion to withdraw in the appellate court. Did the attorney violate the ethical rules by attempting to withdraw from the case over his client’s objection?

An attorney agreed to represent a tenant who was facing eviction for nonpayment of rent. The attorney formalized his representation agreement with the tenant and filed an appearance in the local housing court. The court docket had the tenant’s hearing scheduled for one month later. Four days after filing his appearance, the attorney received a phone call from the tenant saying she no longer wanted him to represent her because she wanted to represent herself instead. She conceded that he had done nothing wrong. The attorney tried to persuade her to change her mind, but she was insistent so the lawyer said he would send her all the documents from her case. The attorney then drafted a letter acknowledging the termination of representation and sent it along with copies of the court documents he had pertaining to the client’s case. The letter was returned three days later to the lawyer, marked “UNDELIVERABLE: Not at This Address.” The attorney tried calling the client, but her phone number was no longer in service. On the date of the tenant’s scheduled hearing, the attorney appeared in person to notify the judge that the tenant had discharged him and to seek to withdraw from the case. The tenant did not appear at the hearing. The judge refused to permit the attorney to withdraw from the case, and ordered him to proceed with the representation, because otherwise a default judgment would enter against the tenant for failure to appear. The hearing then proceeded as scheduled, in the tenant’s absence, with the attorney presenting the same defense for nonpayment of rent that he would have presented if client had not discharged him. Eventually, the court ruled in favor of the landlord and ordered the eviction of the tenant. Was it improper for the attorney to represent the tenant at the hearing, even after the tenant had discharged him?

An attorney is representing a class of plaintiffs in a class action lawsuit over lethal effects of a popular herbal supplement. The class action will have one named plaintiff and approximately 2,000 unnamed plaintiffs. After the class action lawsuit is underway, the same attorney has an opportunity to represent another plaintiff in a personal injury case over an incident at a sporting event, and the defendant is one of the unnamed members of the class action lawsuit over herbal supplements. Does the attorney need to obtain written consent of the unnamed class member before representing the second client in suing the unnamed class member?

While working for a large corporation as in-house counsel, an attorney discovered that the Chief Financial Officer (CFO) falsified the corporation’s quarterly earnings report to boost the firm’s share price. Many of the top executives at the conglomerate, including the CFO, receive compensation partly in stock options. The attorney knew that these misrepresented earnings appeared in the filings to the Securities and Exchange Commission and will eventually result in severe regulatory fines or civil liability for the corporation. What should the attorney do in this situation?

An attorney works as in-house counsel for a large international corporation and has daily contact with higher-level executives and managers. One day, a senior executive mentions casually to the attorney that he has offered lucrative stock options, worth millions of dollars, to a foreign government official who has agreed to give the corporation an exclusive contract to provide certain goods and services to the foreign state. The executive seems to think this is normal and good for the company, but the attorney believes it constitutes bribery of foreign officials, which would violate the Foreign Corrupt Practices Act (FCPA) and could subject the corporation to enormous fines and penalties. The attorney explains her concerns to the executive, including that the executive could face personal criminal charges in addition to bringing liability on the corporation, and she reminds him that she represents the corporation, not him personally. The executive is dismissive of her concerns, even though she approaches him several times about the matter. How must the attorney proceed?

While serving as in-house counsel for a corporation, an attorney discovered that a regional manager had taken several actions that potentially violated state and federal laws. The manager had a reputation for being arrogant and unreasonable, though he was exceptional in his area of expertise and was an asset to the company, despite his unpleasant demeanor. The attorney had clashed with him a few times in the past, and now they were barely on speaking terms. The attorney summoned the nerve to confront the manager about the wrongdoing. The regional manager’s initial response was to be dismissive, saying that he was unaware of any laws or regulations that he might have violated. The attorney walked away from the conversation discouraged and planned to take the matter up with the corporate officers, and perhaps the Board of Directors. Before doing so, he reconsidered and returned to the manager and patiently explained to him the relevant laws and regulations that the manager had violated. The manager begrudgingly accepted the attorney’s advice and took all necessary measures to rectify the wrongdoing and prevent any long-term repercussions. The manager also insulted the attorney, called him incompetent for not bringing up the matter earlier, and suggested that the attorney’s incompetence was due to the attorney’s ethnic background. Could the attorney be subject to discipline for not referring the matter of the illegal actions to a higher authority in the corporation?

An attorney represented a client in an estate planning matter. The client was showing early signs of Alzheimer's dementia: forgetfulness, abrupt changes in the conversation, and repeating the same story or information within the same consultation. At the beginning of each conversation, the client would ask the attorney to remind her of the attorney’s first name and how he liked being a lawyer, though she always recognized the attorney as her legal representative. Home health aides visited the client twice a week, but otherwise the client lived alone and took care of her daily needs without incident, though she no longer drove a car. The attorney found it frustrating to discuss the more difficult legal questions in the estate plan with the client, who would frequently repeat a question twenty minutes after the attorney had given a lengthy explanation to the same question. The client’s overall objectives were clear—she wanted to divide the estate equally among the surviving heirs. At some point, the attorney started to follow his own judgment about the subtler questions, such as the creation of a spendthrift trust, the liquidation of real property rather than bequeathing the title to one or more heirs, and so on. All the attorney’s actions in the matter were standard practices among estate planning lawyers and were objectively competent. In fact, the attorney fulfilled the client’s objectives and protected the client’s interests, even though he decided not to bother the client with the details. Could the attorney be subject to discipline for following his own judgment on the practical questions of estate planning, without including the client in these decisions?

A woman who had recently moved into town made an appointment for a consultation with an attorney at Small Firm to discuss obtaining a divorce from her husband, who was also a lawyer. When the consultation occurred, the attorney asked the woman to “tell him the whole story,” that is, to explain her situation and her objectives in the representation. The attorney did not ask for a waiver of confidentiality. The woman went into considerable detail about the problems in her marriage and her motivations in seeking a divorce, and she also discussed the couple’s finances and her husband’s personal assets and investments. After the consultation, the woman decided not to retain this attorney because she felt his firm’s fees were too high, and she hired another lawyer instead. Two weeks later, the same woman’s husband, who was a lawyer working for the municipal government, wanted to hire Small Firm to represent him in the divorce proceedings. Which of the following statements is false?

Attorney Adler represented a client, Carl, in a small lawsuit against the client’s mechanic. One day, Carl asked the Adler for legal advice unrelated to the lawsuit. Carl explained that once a month, he and some friends play cards in Carl’s home, and Carl wondered whether it was illegal for those playing to place small bets on the card games (the bets were typically less than fifty dollars). Attorney Adler knew of a penal code section in their state that prohibited gambling, and that a literal reading of the statute would include the type of betting that the client described. On the other hand, Attorney Adler knew that the authorities never prosecuted individuals for placing low-stakes bets on games played in private homes among friends, and that this policy of nonenforcement against games in private homes was a longstanding practice. Would it be proper for Attorney Adler to tell Carl about the nonenforcement policy and practice?

An attorney works as a public defender and feels completely overwhelmed because of her heavy caseload. She has started to double-book two or more trials for the same day, counting on one or more of them to resolve in a plea-bargain agreement before trial. Most clients meet her for only a few minutes before their plea-bargaining session, and she emphatically insists with her clients that they accept the prosecutor’s second or third offer for a deal. When her cases go to trial, she must waive voir dire entirely and often does no factual investigation or case research—yet she still wins acquittals in many cases because she is very gifted at destroying the credibility of hostile witnesses during cross-examination. It has become increasingly clear to her that she cannot meet her basic ethical obligations in representing even her existing clients—she does not have time to do competent legal research, in-depth factual investigation, or keep her clients updated about developments in their cases. Must the attorney withdraw from representing some of her current clients?

An attorney represented a criminal defendant in a murder prosecution, in which the defendant could receive the death penalty if convicted. The attorney assiduously pursued pretrial discovery and motions to exclude prosecution evidence. Nevertheless, the defendant confessed to the murder, against the attorney’s specific advice. A sense of hopelessness set in for the attorney, and he began to curtail his efforts in the representation. The situation deteriorated even further when the defendant again ignored his attorney’s advice and waived his right to a jury trial, and then entered a guilty plea to all charges, including the capital murder charge. The attorney then instructed the defendant to request an advisory jury at his capital sentencing hearing, which was permissible in that jurisdiction, but the defendant again rejected the advice and opted for sentencing by the trial judge without a jury recommendation. At this point, the attorney made only token efforts to prepare for the sentencing hearing, and he gathered no evidence regarding the defendant’s character or emotional state. The defendant himself argued for leniency based on his lack of prior convictions, but this proved unsuccessful, and the judge sentenced him to death. On appeal, the defendant claimed that he had received ineffective assistance of counsel. Which of the following best describes the test an appellate court would use in deciding whether to grant postconviction relief?

Perry Mason was a criminal defense attorney. At one point, Mason represented a client facing drug charges. The client was also an undocumented immigrant—he had entered the country many years before on a tourist visa, and then overstayed his visa, never returning to his home country. The prosecutor offered the client a plea agreement that included minimal time in prison. Attorney Mason was pleasantly surprised by the plea offer, given the seriousness of the drug charges against the defendant and the fact that the charges normally carried a ten-year sentence. Mason recognized this as a much better outcome than the defendant was likely to achieve if they went to trial, so he urged his client to accept the plea agreement. The client then explained his immigration status to Mason and asked if accepting the plea bargain could result in his deportation. Immigration law was not Mason’s area of specialty, but he speculated that the plea agreement would have no implications for the client’s immigration status, and Mason assured him that his long tenure in the country meant that he would not face deportation. Attorney Mason was correct about their poor odds of prevailing at trial, but he was completely wrong about this; in fact, pleading guilty to these charges resulted in deportation for the client, as a matter of statutory law, after he served his sentence. The client followed the advice and faced deportation. Is the defendant likely to prevail on a claim based on ineffective assistance of counsel?

Attorney Bales has her own law practices and represents criminal defendants in their trials and plea negotiations; she is a bright and energetic lawyer. Most of her clients come from court appointments to represent indigent defendants. Attorney Bales is passionate about defending the rights of indigent defendants, so she takes every case referred to her by the local courts. The volume of cases she handles, due to the number of court appointments she accepts, means that she cannot feasibly keep abreast of changes in the law, investigate and prepare cases, act promptly on behalf of clients, or even communicate effectively with each client. She strongly believes, however, that indigent defendants are better off receiving some legal help than no help at all, so she is unwilling to turn away any cases. Besides, 95% of the criminal cases in her jurisdiction result in plea agreements, which sometimes take only a few hours to negotiate and finalize. Is it permissible for Attorney Bales to continue accepting court appointments, given these facts?

An attorney works as a public defender. Because the office is always under-funded, it cannot afford to hire enough staff attorneys to handle the workload. The current public defenders all carry an overload of cases. The attorney feels that she is unable to provide full representation to each client, as she must conduct about seven plea-bargaining sessions for different clients per weekday. Usually, she meets the clients for the first time about fifteen minutes before each plea bargain session. Each plea bargain takes about an hour, with short breaks in between. The attorney strongly encourages nearly all of her clients to accept a plea bargain because taking one case to trial means that the public defender’s office must turn away about two dozen indigent clients. The attorney and her colleagues believe that it is better for defendants to have a little representation than none at all and that most defendants would lose at trial anyway. Based on these facts, has the attorney violated the Model Rules of Professional Conduct?

Twenty years ago, an attorney represented a client in a transactional matter that involved incorporating a small business that the client later sold. The proceeds from the sale went to fund college tuition for the client’s grown children. More recently, the former client’s wife retained the attorney to represent her in a divorce action against her husband, the attorney’s former client. The husband and wife both provided the attorney with informed consent, confirmed in writing, waiving any conflicts of interest. The husband barely remembered the attorney. In fact, the previous representation has no bearing on the current divorce or marital property. The wife then told the attorney, in confidence, that husband had an extramarital affair the previous year, and this was a major factor in her deciding to file for divorce. She explained that it was very important to her that her husband’s affair be a centerpiece in the divorce proceedings, as it would give her closure and help both her parents and her grown children to understand why she felt compelled to end the marriage. The attorney believed her, but found this allegation unsavory and did not want to embarrass her husband, especially given that the husband was a former client. The attorney halfheartedly filed the divorce petition without any mention of the affair, stipulated to the husband’s request for a sealed record without discussing this move with the wife, and resolved the matter as discreetly as possible. Ultimately, the wife accepted the settlement recommended by the attorney but was deeply disappointed that the affair had been kept secret, with the result that her family would not believe her about the reasons she sought a divorce. Were the attorney’s conduct proper?

A certain client is a second-year law student at a state law school. The client’s Professional Responsibility professor forbids the use of the internet by students during class sections. The school’s student handbook also strictly forbids use of the school’s wireless computer network, which provides the only Internet access inside the building, during class sessions unless the professor permits it. The client visited a social networking site during a class session, and when the professor discovered it, he had the student arrested for violating the state’s Computer Fraud and Abuse Act, which imposes civil and criminal penalties for unauthorized use of a government computer network. The client hired an attorney to represent him. The attorney is shocked that the police and prosecutor are involved in such a ridiculous case and is reasonably certain a judge would dismiss the charges before trial. The prosecutor called the attorney and explained that the district attorney regards this as an important test case and wants to bring it to trial, but they will offer a plea bargain of only twenty years in prison if the student will plead guilty and accept responsibility. The attorney blurted out a profanity and hung up on the prosecutor. He did not mention the offer to the client, out of fear that it would upset him, and instead drafted a motion to dismiss. The court granted the motion and dismissed the charges against the client. Would the attorney be subject to discipline?

An attorney represents a client in a litigation matter. The client was not present during the last pre-trial hearing at which the lawyers argued about whether certain experts on each side could testify at trial. The trial was to start the following week. At the end of the hearing, the opposing counsel asked the court to have the record sealed in the upcoming trial and to have reporters banned from the courtroom. He explained that the testimony at trial would necessarily reveal some of his client’s trade secrets, and it was important to the client to keep the trial records sealed. The judge was amenable to this suggestion and asked the attorney if he had any objections. The attorney tried to call the client, but the client did not answer his phone right then. The attorney agreed to the sealing because he could not think of a compelling reason for the client to oppose the motion. The judge set the matter for a sealed-record trial. The client never returned the attorney’s call, and the attorney did not explain what had transpired until they arrived at the court for the first day of trial. The client was dismayed because he had planned to use this litigation as a test case for subsequent litigation over the same type of issue, but the attorney explained that it would now be difficult to get the judge to reverse course on this point. Would the attorney be subject to discipline in this case?

A client paid his legal fees to his attorney in cash. The total fees were $11,100, and the client paid the attorney in bundles of twenty-dollar bills. Section 26 U.S.C. § 6050 of the Internal Revenue Code requires that lawyers disclose, through Form 8300, the identities of “clients, amounts, and payment dates of all cash fees in excess of $10,000.” The client had forbidden the attorney to disclose the information to the IRS. Must the attorney disclose on the Form 8300 the client’s name, the amount, and the dates of payment?

An attorney represents a client before an Administrative Law Judge (ALJ) in a regulatory enforcement matter. The ALJ orders the attorney to disclose whether the client had received legal counsel about the regulatory requirements in question before the violation occurred. The client forbids Attorney Gibbons to answer the question. The attorney can think of three arguments he might use to persuade the ALJ that the disclosure order is inappropriate: that the ALJ lacks statutory authority to make such orders, that the information is not relevant to the proceeding, and that attorney-client privilege applies. Each of these arguments is weak and unlikely to prevail, but they are not completely frivolous. Should the attorney object and try to assert these defenses against disclosure, even though they are unlikely to succeed?

An attorney represents a chemical manufacturer. A regional vice president recently informed the attorney that there was a chemical spill that released hundreds of gallons of toxic substances into a stream that ran into the town’s nearby water supply reservoir. The spill occurred because a newly hired employee turned the wrong valve during a training exercise at the plant. The attorney explained that the corporation could face civil liability in either tort actions or regulatory actions by governmental entities at the state and federal levels and urged the vice president to report the spill immediately, if it was still unreported. The vice president replied that the company could not afford the negative publicity and the impact it would have on its share price. He reminded the attorney that the upper management of the company received most of its compensation in the form of preferred stocks and options, so it seemed unfair to penalize them through a loss in share price. The attorney explained that he would have to withdraw from representation and would report the incident to the necessary public health officials, which he did, despite the vice president insisting that this was confidential information. Did the attorney violate his ethical duty of confidentiality to the client?

A client hired an attorney to represent her in a divorce proceeding and custody battle over the client’s children. At one point, the client explained to the attorney that if she loses custody of the children to her estranged spouse, she has detailed plans to murder the spouse and make it look like a suicide so that she can regain custody of her children. The attorney believes that the client could plausibly carry out this plan successfully, and the attorney is reasonably certain that the client will indeed lose custody of the children in the current proceeding. May the attorney immediately warn the estranged spouse, the tribunal, or the police about the client’s plan?

A corporate executive hired an attorney to represent him in a criminal matter. The client faced charges over corporate fraud that he perpetrated two years before when he was the chief financial officer of a large, publicly traded corporation. The attorney learns during his interviews with the client that the fraud will have some far-reaching consequences for investors and another large corporation in the area, consequences that the prosecution and regulatory authorities have overlooked so far. The attorney realizes that if he discloses this information now, he could prevent substantial injury to the financial interests or property of innocent people and that harm is reasonably certain to result otherwise. According to the Model Rules of Professional Conduct, may the attorney disclose the information to prevent this substantial injury to the financial interests of others?

An attorney was a well-known criminal defense lawyer and he agreed to represent a celebrity who is a defendant in a high-profile murder case. The attorney filed the proper notice with the court and the prosecutor’s office that he was representing the celebrity client. The attorney also filed a motion to exclude the client’s confession that he gave to the police on the night of the murder while the client was somewhat intoxicated; the attorney‘s motion concedes the intoxication and contends that this nullifies the voluntariness of the confession for Fifth Amendment purposes. The news media learned that the attorney was representing the celebrity, and news commentators began to speculate that the famous defendant must be guilty if he hired such a notorious defense lawyer. The client was furious that anyone knew that he had hired a lawyer, which he claimed was confidential. Did the attorney violate the ethical rules of confidentiality by making these disclosures without his client‘s express authorization?

An attorney represents a client in several contract dispute cases regarding services for which the client received payment but had not rendered the services due under the contracts. Independently of these legal matters, the local prosecutor’s office indicted the client on offenses related to a fraudulent investment scheme he ran. The client retained the same attorney he used for the contract disputes to represent him in his criminal case as well. The client confided to the lawyer that he solicited and accepted money from an elderly widow in his area for a financial investment company that did not exist. The client explained that his construction business ran into financial troubles, and he used this scheme to obtain money to pay his construction company’s expenses. On the other hand, he assured the attorney that he did not plan to do this again. What may the attorney do in this situation?

A client hired an attorney to provide the legal services necessary to set up her professional business. Subsequently, a dispute arose between the client and the attorney over the fees, and the fee dispute turned into litigation. To support his claims and defenses in the fee dispute, the attorney had to disclose to the tribunal exactly what he did for the client and the complexity of the issues involved, which necessarily involved the disclosure of confidential information. Was it proper for the attorney to disclose this confidential information about the client merely to prevail in a fee dispute?

A client hired an attorney to defend him in a criminal matter involving assault charges. During the attorney's interviews and investigation for this case, he learned that the client had also been committing identity theft and credit card fraud, obtaining credit cards in the names of other individuals and running up charges on the cards without paying the bills so that the individuals whose names are on the cards would have to pay the debts. The attorney urged the client to stop this practice, but the client just laughed at him. The attorney continued his representation of the client and won an acquittal on the assault charges. The representation is now over. May the attorney warn some of the individuals in whose names the client has obtained credit cards, according to the Model Rules of Professional Conduct?

As part of his investigation of a client’s matter before trial, an attorney met with several people familiar with the client’s situation to gather information and determine if any of the individuals could be a potential witness at trial. One of the client’s co-workers told the attorney several disturbing stories about corruption at the client’s workplace. Later, at trial, the opposing party moved to compel the attorney to disclose the information conveyed by the client’s co-worker. The attorney objects that this information falls under the attorney-client privilege and is therefore inadmissible. Is the attorney correctin this assertion?

An attorney represents a large corporate client. The company has an employee hotline for complaints of workplace harassment, so that the company’s management can quickly investigate the complaint as a personnel matter and can have their attorney review the complaints for potential claims or lawsuits against the corporation. An employee used the hotline to allege that her supervisor was harassing her. The management referred the complaint to the attorney for review, and after some inquiries and preliminary investigation, the attorney concluded the complaint was not valid. It turned out the employee was chronically late for work and had received a written reprimand from the supervisor, without further action or discussion. The attorney drafted a memorandum to the management detailing her investigation—the conversations with the employee, the supervisor, and some co-workers in that department—and explained that there was no basis for a lawsuit by the employee. Nevertheless, the employee eventually quit and filed a lawsuit against the corporation, and her lawyer sought to compel discovery of the memorandum by the company’s attorney. Is the memorandum protected by attorney-client privilege?

Executives at a large pharmaceutical manufacturer discovered that one of the company’s foreign subsidiaries had bribed local government officials to obtain lucrative government contracts. During the internal corporate investigation of the matter, the corporation’s directors asked their in-house general counsel to send written inquiries to dozens of the corporation’s foreign managers about whether similar payments or bribes were occurring elsewhere. After reviewing the responses to these inquiries and following up with phone calls and meetings, the corporate directors self-reported any questionable transactions to the Internal Revenue Service (IRS). The IRS then demanded to see all the original written responses to these internal inquiries. The corporate directors and general counsel refused, claiming that the information was privileged. Are the responses to the internal inquiries privileged communications?

A manufacturing firm received a complaint about a consumer who suffered injuries from using one of the manufacturer’s products. The manufacturer referred the complaint to its legal department, and the in-house lawyer who investigated the complaint concluded that the complaint posed no legal issues for the company because of a state statute that shielded manufacturers of that type of product from tort liability. The attorney wrote a legal memorandum to the company’s management describing his investigation and conclusions. The memorandum included a section of factual findings and another section presenting the legal analysis. Are the facts described in the lawyer’s memorandum privileged and protected against discovery at a subsequent trial?

A large corporation is involved in litigation that has received media attention on major news networks and online news portals. The company’s directors have asked their litigation attorneys to give a private presentation to their outside public relations firm, explaining the company’s litigation strategy and risk assessment, because the public relations firm handles press inquiries about the litigation. The litigation attorneys have had no prior contact with the public relations firm, so they opened their presentation with a reminder that the meeting was confidential and that some of the information shared would be privileged. Later, the opposing party in the litigation learns that this meeting occurred and seeks discovery of the presentation slides the lawyers used in their presentation to the public relations firm. Are the presentation slides protected by attorney-client privilege?

An attorney represents a large corporation with several offices around the state. After receiving a few employee complaints about workplace discrimination from one office, the company asked the attorney to investigate the situation and advise the company about its potential liability. The attorney conducted a careful investigation and wrote a thorough memorandum summarizing her findings and legal conclusions. The attorney then emailed the memorandum to all the company’s human resources managers in each of its offices statewide—39 recipients in all. When litigation eventually ensued over the alleged discrimination, the plaintiffs sought discovery of the attorney’s memorandum, but the corporation and their attorney maintained that attorney-client privilege applies to the memorandum. Is this position correct?

An attorney is general counsel (in-house) for a corporation, but he is also the acting chief financial officer due to his background in corporate finance and economics. The attorney’s duties are evenly divided between legal tasks for the company (contract review, regulatory compliance, and supervising the outside firms that handle the company’s litigation) and corporate financial operations. Every week, the attorney prepares or reviews financial reports, investment strategy proposals, and various emails or memoranda relating to the firm’s financial affairs. An opposing party in antitrust litigation against the corporation seeks to compel production of some of the attorney’s financial reports and strategy proposals, but the attorney claims these are covered by attorney-client privilege, as he simultaneously serves as the corporation’s in-house lawyer. Is the attorney correct?

The directors of a large corporation requested that its lawyer investigate allegations of wrongdoing. During that investigation, the lawyer conducted interviews of the organization's employees and managers. The interviews revealed that the alleged wrongdoing involved only one employee, whom the corporation immediately terminated. After resolving the matter, the lawyer authored a series of blog posts about the amusing anecdotes he heard during his interviews, illustrating the petty internal politics, the low morale in certain departments, and a few of the office romances that had ended badly. Did the lawyer violate his ethical duties to his client?

Attorney Adler represented a client, Carl, in a small lawsuit against the client’s mechanic. One day, Carl asked the Adler for legal advice unrelated to the lawsuit. Carl explained that once a month, he and some friends play cards in Carl’s home, and Carl wondered whether it was illegal for those playing to place small bets on the card games (the bets were typically less than fifty dollars). Attorney Adler knew of a penal code section in their state that prohibited gambling, and that a literal reading of the statute would include the type of betting that the client described. On the other hand, Attorney Adler knew that the authorities never prosecuted individuals for placing low-stakes bets on games played in private homes among friends, and that this policy of nonenforcement against games in private homes was a longstanding practice. Would it be proper for Attorney Adler to tell Carl about the nonenforcement policy and practice?

Attorney Allison represented a small business owner, Claire, for several years. In her professional opinion, Attorney Allison believed that Claire could validly claim a deduction on state income-tax returns for Claire’s internet service charges as a business expense. Nevertheless, the Allison remembered that she had read some published reports and data suggesting that claiming such deductions increased the likelihood of a tax audit. Tax audits are often costly and time-consuming, even for clients with nothing to hide, so Claire expressed dismay upon hearing this. The next day, Claire called Attorney Allison and inquired whether there was a “safe” level of charitable deductions that taxpayers like her could claim without raising any suspicion or scrutiny. Attorney Allison had known Claire since they attended college together, and she knew that Claire never gave more than a dollar at a time to any charities. Under these circumstances, which of the following best describes Attorney Allison’s proper course of conduct?

An attorney represented a small business client in a few transactional matters. None of the attorney’s work for the client involved information about the client’s finances or assets, so the attorney knew very little about the client’s overall income, assets, or insurance coverage. On a wholly unrelated matter, Vick, a tort victim, approached the attorney seeking representation for a negligence lawsuit against the small business client over damage to Vick’s expensive car. During theinitial interview, Vick gave very few details about the accident or the scope of damages, except to identify the attorney’s small business client as the intended defendant and to specify that the incident involved a scraped fender in a parking garage. The attorney believed there was no significant risk that the representation of the small business client would materially limit the attorney’s responsibilities to Vick, and vice versa. Because the attorney believed there was no conflict, he did not seek consent from either party, although he mentioned to Vick that he had drafted some documents for the defendant’s business, and the small business client would obviously learn about the representation of Vick when the attorney filed the lawsuit. May this attorney proceed with representing Vick in the negligence lawsuit?

An attorney agreed to represent business owner, who wished to sell her business to a prospective buyer. The sale has already bogged down in protracted negotiations over purchase price, outstanding liabilities, and certain trade secrets. The attorney also represents the prospective buyer in unrelated litigation over child support payments after a divorce. The buyer and seller are not litigating against each other; the attorney represents each in wholly unrelated matters. Must the attorney obtain informed consent from each client to undertake representation of the seller in the negotiations over the sale of the business?

An attorney has been representing a client in an adoption of an orphan from another country. A corporation subsequently hires the attorney to defend it against a defective products lawsuit brought by a victim. During the discovery phase of litigation, the victim’s lawyers disclose the list of witnesses they plan to call at trial to testify on behalf of the victim against the corporation. The attorney’s adoption client is on the victim’s witness list. The adoption client is unaware that the attorney is representing the corporation The adoption client, who is a friend of the victim, will testify about the victim’s character traits of caution and care and the suffering the victim has endured since the incident with the corporation’s defective product. The attorney was not aware that the adoption client even knew the victim, and therefore had no previous reason to obtain consent from the adoption client, the corporation, or the victim about his representation of the corporation in the litigation. Will the court grant a motion to disqualify the attorney from representing the corporation in the products liability case?

An attorney is representing two French restaurants that are located across the street from each other. They are the only French restaurants in the area, so they compete for the same customers, and their menus, decor, and prices are very similar. The attorney currently represents both restaurants, one in a dispute with its landlord, and the other in a wrongful discharge lawsuit by a former employee. The restaurants have sued each other in the past, using other lawyers. The attorney had not sought consent from each client to represent its competitor, and when each client learned that the attorney was representing the other, they both expressed concern. The second client eventually lost its wrongful termination lawsuit, and then sued the attorney for legal malpractice, claiming that he had a conflict of interest in the representation. Under the ABA Model Rules, did the attorney have a conflict of interest that would subject him to disciplinary action?

Two co-plaintiffs agree to representation by the same lawyer in a civil action, and both provide written informed consent to the potential conflicts of interest. Halfway through trial, the opposing party unexpectedly makes a settlement offer that one client wants to accept. The other client wants to reject it, as he believes that a favorable jury verdict is a certainty and will be much higher. The lawyer strongly encourages them to accept the settlement offer, which he believes is generous, given his perception that their chances for a favorable jury verdict are slim. Unable to reach a consensus on whether to accept the settlement offer, one of the clients revokes his consent to the conflict of interest. Assuming there are no other special circumstances in this situation and that the court would not prohibit withdrawal, must the lawyer seek to withdraw from representation?

An attorney specializes in intellectual property law, representing both inventors and venture capitalists in tech startup businesses. Even though the attorney represents only one or the other side in each transaction, she may represent an inventor in one contract with a venture capitalist and represent that venture capitalist in drafting agreements with other inventors. The attorney has drafted a standardized “waiver of future conflicts” form that she asks all clients to sign along with their retainer agreement at the beginning of representation. The waiver of conflicts form explicitly consents to representation despite any and all conflicts of interest that might arise regarding the attorney’s past, present, or future clients. When an actual conflict of interest or adverse relationship exists between clients at the outset of representation, she carefully explains the situation to new clients and encourages them to seek advice from other counsel about signing the waiver. When no present conflicts are apparent, but only hypothetical potential conflicts are at issue, the attorney merely says that the form is for hypothetical, potential conflicts of interest that probably will not arise in the current transaction. Is this attorney’s standardized “waiver of future conflicts,” when signed by new clients, likely to be effective in this situation?

Two co-plaintiffs in a personal injury lawsuit hired Attorney Johnson to represent them in the matter. The litigation promised to become very complex, with multiple issues pertaining to liability and multiple potential defendants. Attorney Johnson had each client sign a detailed “waiver of present and future conflicts of interest” form and carefully explained the specific types of conflicts that can arise between co-plaintiffs in tort litigation, such as indemnification claims, cross-claims, adversarial positions in response to counter-claims from defendants or third-party interveners, and so on. In addition, Attorney Johnson encouraged both clients to consult with separate lawyers before consenting to the conflicts, and both did so. Moreover, both plaintiffs were themselves lawyers and were very familiar with the potential conflicts of interest that could arise from this common representation. Attorney Johnson reasonably believed that she would be able to provide competent and diligent representation to each affected client. As the trial date approached, a counter-claim by one of the defendants forced one plaintiff to file a cross-claim for indemnification against the other. Will the written, informed consent to potential conflicts that each client signed be effective in this situation, so that Attorney Johnson does not have to withdraw from the representation?

An attorney is representing a class of plaintiffs in a class action lawsuit over lethal effects of a popular herbal supplement. The class action will have one named plaintiff and approximately 2,000 unnamed plaintiffs. After the class action lawsuit is underway, the same attorney has an opportunity to represent another plaintiff in a personal injury case over an incident at a sporting event, and the defendant is one of the unnamed members of the class action lawsuit over herbal supplements. Does the attorney need to obtain written consent of the unnamed class member before representing the second client in suing the unnamed class member?

In a divorce proceeding, the husband retained a certain attorney to represent him. Several years later, the husband’s former wife wanted to hire the same attorney The attorney called the ex-husband, his former client, and discussed the conflict of interest with the ex-husband. The former client gave consent over the phone to the attorney representing the ex-wife in the child support matter. The ex-wife also consented to the conflict. The attorney proceeded to file the child support enforcement case, which the ex-husband immediately settled, paying the full amount owed. Did the attorney violate the ethical rules regarding conflicts of interest?

A manufacturer produces the latest technology in magnetic-resonance imaging machines for medical diagnostics in hospitals. Each machine sells for almost one million dollars apiece. Three years ago, the manufacturer hired an attorney to draft a Purchase and Sale Contract for the manufacturer to use whenever it sells one of the devices to a hospital. The attorney’s representation ended after drafting this model contract, and the attorney has done no legal work for the manufacturer since. Recently, a local hospital hired the same attorney to handle a dispute with the manufacturer of one of its high-end diagnostic machines. The attorney quickly learned that the faulty device is one of his former client’s magnetic-resonance imaging machines, and that the hospital administrator consummated the purchase by signing one of the contacts that the attorney himself had drafted. The hospital now merely seeks to rescind the contract and return the machine for a full refund; the hospital has not yet incurred damages due to the faulty machine, but the device is unusable and was very expensive. Would it be proper for the attorney to represent the hospital in this case?

A commercial real estate developer hired an attorney to secure environmental permits to build a shopping center. The relevant federal and state agencies granted the necessary permits. The attorney’s representation of the developer ended once the environmental permits were securely in hand. Nevertheless, construction of the shopping center did not begin immediately, because clearing the land exhausted the developer’s initial supply of investment funds. Two years later, the developer found another investor and began preparations for the construction of the shopping center. In the meantime, the residents of the neighborhoods around the proposed shopping center had turned against the project, out of concerns for the increase in traffic and litter that it could bring to the area, as well as the flooding of adjacent yards that would result from the rainwater runoff from a new parking lot. A neighborhood association formed to oppose the new development, and its organizers learned that the rezoning of the property by municipal authorities to permit a shopping center was still pending, with an upcoming public hearing on the schedule. The neighborhood association then hired the same attorney to represent the neighbors in opposing the rezoning on the basis of environmental considerations. Under the Model Rules of Professional Responsibility, would it be proper for this attorney to represent the neighbors in this matter?

An attorney previously represented a developer in securing environmental and construction permits to build an apartment building. Various government agencies granted the necessary permits. Funding shortfalls unrelated to the attorney’s representation delayed the construction of the apartment building after the attorney’s representation of the developer ended. Eventually the developer completed the apartment building, decided to manage the property instead of selling it, and leased most of the units. Three years later, one of the tenants was unable to pay rent for her unit for two consecutive months, so the property manager commenced eviction proceedings. The tenant hired the same attorney to represent her in the eviction proceedings. The apartment’s owner filed a motion to have the attorney disqualified due to the substantial relationship between his previous work in securing environmental permits for the building and the present eviction action against the tenant. Should the court grant the motion to disqualify the attorney from representing the tenant in this matter?

An attorney has represented a particular client several times in various civil litigation and transactional matters. The client and the attorney decide to purchase a piece of property together, which has an appraisal value of $4 million. The lawyer and client each contribute 50% to the purchase price, but the client receives a 5% interest in the property and the attorney receives a 95% interest in the property, by agreement of the parties. The greater ownership share for the lawyer is due to some unpaid legal fees that the client owed the attorney, totaling around $2,000. Even so, the value of the representation is far less than the value of the additional interest that the attorney received in the property. The client was represented by independent legal counsel for the property purchase. Could the attorney be subject to discipline for this lopsided deal with the client?

A defendant in a high-profile murder case hired an attorney to represent him. The defendant was unable to pay the attorney’s fee, but he offered to assign the attorney the full media and literary rights to his story of the events and the trial, in exchange for representation. The attorney agreed but included a provision in the representation agreement stating that the attorney would not use any media or literary rights until the conclusion of the representation. The case proceeded to trial and eventually resulted in an acquittal for the client. Would the attorney be subject to discipline for violating the conflict of interest rules?

An attorney represents a wealthy executive in a divorce case. During the course of the representation, the attorney learns that the client intends to purchase and develop several parcels of land in an undeveloped area on the outskirts of the city. It happens that the attorney also represents a physician in an estate planning matter. The attorney and the physician have a longstanding relationship, so the attorney mentions something to the physician about the parcels of land that are for sale on the outskirts of the city, which another client brought to the attorney’s attention. The attorney recommends that the physician also try to buy one of the parcels of land as an investment for the estate, knowing that the area will soon see development and the property values will increase. Even in the short term, the attorney knows that the physician could potentially make a quick profit by buying a parcel and selling it to the other client when that client gets around to purchasing the parcels. The attorney did not mention to the physician that his other client was the individual planning to purchase and develop the parcels. Would the attorney be subject to discipline for giving the physician this offhand tip?

An attorney represents a large corporate conglomerate in a civil suit. During the representation, the attorney began a sexual relationship with a receptionist at the conglomerate. The receptionist’s only duties are to answer the phone, route calls, take messages, and prepare outgoing mailings; she has no authority in decision-making at the company. In fact, the receptionist’s only workplace communication with the attorney is when the attorney calls the conglomerate and the receptionist routes his call to the person with whom the attorney wishes to speak. Has the attorney violated the ethical rules regarding conflicts of interest by carrying on a relationship with the receptionist?

An attorney represents several clients in various matters before a federal regulatory agency. In one proceeding involving one of the attorney’s clients, the agency adopts a new interpretation of a recently enacted statute about unfair trade practices, and this becomes the rule of the case. The attorney has some new clients who are at the beginning stages of an agency inquiry of their business pertaining to the requirements of the unfair trade practices statute. Without mentioning the identity of the other client or the exact nature of the proceedings, the attorney informs the new clients that the federal regulatory agency has just adopted a particular interpretation that could be very favorable to the new clients in their interactions with the agency, so long as the clients conduct certain internal audits and recordkeeping. Could the attorney be subject to discipline for sharing with new clients this information he learned during the representation of the other client?

An attorney recently moved laterally to a new firm. His previous firm represented a large corporate conglomerate, and the attorney occasionally worked on some of the conglomerate’s legal matters. The attorney’s new firm recently decided to represent the plaintiffs in a lawsuit against the same corporate client, and the cause of action arises from a new consumer protection statute that the state legislature passed in its last session. The attorney had left the previous firm before the new lawsuit began, and will not work on the new lawsuit at all. If the attorney knows some confidential information about the conglomerate that is material to the new matter, would it be proper for the attorney’s new firm to represent the plaintiffs in an action that is directly adverse to the corporate conglomerate?

An attorney moved to a new firm. Her previous firm has represented a large corporation for many years, and the attorney occasionally worked on some of the corporate client’s matters, in the course of which she acquired confidential information about the company. The attorney’s new firm represents a client in an action against the same corporation. The corporation’s lawyers at the attorney’s previous firm move to disqualify the attorney’s new firm from representing the client in the case against the client. The partners at the attorney’s new firm were unaware that this attorney’s previous firm represented the corporation, first learning of this when they received the motion to disqualify their firm. The firm immediately implemented screening procedures to keep the attorney from working on the case or receiving or sharing any confidential information about the case or about the corporation’s other legal matters. The firm provided notice to opposing counsel about the screening procedures and plans to provide periodic certifications of compliance as well. Should the attorney’s new firm be subject to disqualification?

An attorney worked for a large firm for several years, during which he represented a corporate conglomerate on several matters. At the beginning of representation in each matter, the attorney obtained written informed waiver of future conflicts of interest from the conglomerate, specifically including the possibility that the attorney might later represent the government in unrelated matters adverse to the company. The attorney eventually left the large firm and went to work for a federal regulatory agency, in its enforcement and litigation division. On behalf of the agency, the attorney brought an enforcement action against the same corporate conglomerate for some very recent regulatory violations that were mostly unrelated to any previous work the attorney had performed for the conglomerate as a client while at the large firm. Would a court be likely to disqualify this attorney from representation in this matter?

An attorney spent several years working for a large firm in its business litigation division. While there, the attorney represented a client in an action against a national corporation alleging unfair trade practices and antitrust violations. The attorney eventually left that large firm and accepted a position at a federal regulatory agency. There, the attorney’s first assignment was to bring an enforcement action against the corporation for violating antitrust laws and unfair trade practice laws. The attorney obtained written informed consent from his previous client to pursue a related matter against the corporation, but not from the agency itself or from the corporation. Is it proper for teh attorney to represent the government in an enforcement action against his prior opponent, if the matter is substantially related?

After law school, an attorney worked for two years as a judicial clerk for a federal district judge. A few months before her clerkship was to end, the attorney applied for positions at several law firms in the area and interviewed with them for a position as an associate. Each of these firms had matters pending on the docket of the judge for whom the attorney clerked. During the interviews, neither the attorney nor any of the interviewers brought up the issue of the firm’s pending matters before the judge. The interviewers at each firm did ask the attorney general questions about how she liked her judicial clerkship experience. The attorney notified the judge that she was interviewing with these firms, and the judge did not object. The judge wrote a recommendation letter for the attorney, which the attorney submitted to each of the firms. Was it proper for the attorney to seek employment with firms that have pending matters before the judge for whom she clerks?

Bonnie and Clyde are co-defendants, facing felony charges for a string of armed robberies. Attorney Abbott represents the two of them together. The District Attorney has a theory that Bonnie planned the crime and was the only one carrying a weapon, while Clyde helped collect the money during the robbery and drove the getaway car. This prompts the District Attorney to offer Clyde a plea agreement—if Clyde will plead guilty to a misdemeanor and then testify against Bonnie, he will receive a minimal amount of jail time. Attorney Abbott is loyal to both clients, so he insists that Clyde reject the District Attorney’s offer. Which of the following is true regarding Attorney Abbott’s ethical duties?

Two business partners had a bitter dispute that led to the dissolution of their partnership and eventually to litigation over the assets and obligations of the partnership. One of the partners hired an attorney to represent him in the litigation. During a pre-trial deposition of the attorney’s client, the client gave answers that the attorney knew were false. The attorney said nothing and allowed his client to continue giving false testimony. Later, at trial, the opposing party submitted evidence that proved conclusively that the attorney’s client had lied during his deposition, and it was an easy inference that the attorney must have known that his client’s statements were untruthful, given the circumstances. The judge filed a grievance against the attorney for allowing his client to give false testimony and failing to rectify it for the court. The attorney objected that his alleged ethical violation took place during a deposition, not at trial, so the duty of candor to the tribunal did not apply, as the testimony did not take place before the tribunal. Could the disciplinary authority reprimand the attorney even though the incident occurred outside of court, at a pre-trial deposition?

An attorney wrote a brief for the court arguing against the opposing party’s motion for summary judgment. In his brief, the attorney never mentioned specific cases that were controlling authority in that jurisdiction and that were adverse to the attorney’s position, because the opposing party’s brief already discussed all adverse controlling authority. Instead, the attorney focused on a few outlier cases that supported his side and dismissively referred to all the contrary authority, discussed at length in the opposing party’s brief, as “easily distinguishable from the present case on factual grounds.” No objective reader would have thought that the brief presented a fair, even-handed exposition of the law relevant to the case, and no objective reader would have found the attorney’s brief very convincing. Has the attorney violated the duty of candor to the court by writing such a one-sided brief?

Two litigants were represented by counsel. One of the attorneys had to testify briefly at her client’s trial about a point that was uncontested, but nevertheless necessary, as an antecedent point for the issues in the case. The attorney testified to facts that she believed were true at the time she testified. Later, before the conclusion of the proceedings, the client discharged the attorney, and then informed the attorney of previously unknown facts that compel the conclusion that the attorney’s testimony was incorrect. Does the attorney have a duty to take remedial measures to rectify the false statement?

Litigation was underway between two parties, and the plaintiff sought to recover a significant sum from the personal assets of the defendant. The judge issued an order that the parties could not transfer any assets out of the jurisdiction. Two weeks later, the defendant’s attorney learned from her client’s spouse that the client had transferred hundreds of thousands of dollars to secret offshore bank accounts. Although neither the attorney nor the client had made any affirmative representations to the court about following the court’s order, it is clear to the attorney that the court and the opposing party are under the impression that both parties are complying with the court’s order and are relying upon that fact in the ongoing proceedings. The client did not use the attorney’s services in any way to make the transfers, and the attorney did not recommend it or know about it until after it occurred. Would it be proper for the attorney to do nothing and say nothing about the matter at this time, in order to protect the client’s confidential information?

The local public defender represented a suspect that federal law enforcement agents arrested on armed robbery charges. The defendant’s roommate claimed the defendant was at home with him watching a football game at the time that the police say the crime occurred. The defendant rejected the plea bargain that the prosecutor offered and opted instead to go to trial because he felt he had a credible alibi witness. The public defender interviewed the roommate, however, and learned that the roommate did not want to testify at trial or get further involved in the case. Recognizing that the roommate was his client’s only chance at an acquittal, the public defender offered to pay the roommate a large sum in cash to testify at trial, half before and half after the trial. The roommate agreed because he was concerned about paying rent that month, given that the defendant’s half of the rent would not be forthcoming. Would the ethical rules permit the public defender to pay the roommate an honorarium to testify?

An attorney represented a client in commercial litigation that required the testimony of experts to assess the economic losses suffered, the costs of mitigating the damage, and so forth. After much effort, the attorney located an expert witness who could substantiate his client’s claims and refute the testimony of the opposing party’s expert witness. The expert witness, however, demanded a large retainer fee to review the case documents and a fee of $1,000 per hour of courtroom time. Was it proper for the attorney to agree to pay the expert witness a princely sum to testify at trial?

Following an acrimonious divorce, a client hired an attorney to represent her in litigation over the custody of her children. The client was concerned about her former best friend, in whom she had confided about her struggles with substance abuse and mental illness. The friendship had ended because of an intense argument before the client married and had children. In fact, the client had been free from substance abuse since she married and was now managing her mental health issues very well. The attorney located the former friend, explained that the client was fighting for custody of her children, and that he expected the ex-husband’s lawyer would call her to testify about the client’s former troubles at the hearing. The attorney pleaded with her to show consideration for the years of good friendship with the client and to refuse to betray her former friend’s confidence. The former friend felt deeply moved by this entreaty and agreed to stay out of the litigation. Were the attorney’s actions proper?

An attorney represented a medium-sized company in an enforcement action, brought by the a federal agency that enforces labor laws, over violations of the laws protecting unionized workers. The attorney met with the employees of his client, in groups of four or five at a time, and explained that there was litigation pending, that government lawyers are representing the federal agency, and that they should decline to discuss the case with anyone, especially lawyers from the government. Was it proper, under the Model Rules, for the attorney to ask the employees not to talk to the other party?

A criminal defense attorney represented a defendant who was facing charges for armed robbery. While preparing for trial, the defendant told the attorney that he intended to lie on the witness stand. The attorney tried to dissuade him, explaining that committing perjury could subject the client to additional criminal changes, and that the prosecuting attorney was likely to expose the client’s untruthfulness during cross-examination. Should the attorney allow the client to testify under these circumstances?

A client committed perjury on the witness stand during his trial, but her attorney did not know it at the time. The client won her case and there was no appeal of the verdict. Sometime later, the client boasted to her attorney that she successfully lied to the court and won the case as a result. Does the attorney have an ethical duty to disclose to the tribunal that the perjury occurred?

While conducting research on a litigation matter, an attorney finds a very new case from the highest court in a neighboring jurisdiction that is directly adverse to his client’s legal position in the case. The issue presents a case of first impression in the attorney’s own jurisdiction, where the case is taking place. The opposing party did not mention the case in its briefs, and the attorney realizes that the opposing party’s lawyer has been recycling his firm’s briefs for this type of case for several years without updating his research. Does the attorney have an ethical duty to disclose the unfavorable authority to the court?

A major city had a string of murders over a period of three years, and eventually the police realized the murders were the work of a serial killer. A suspect was eventually arrested and was awaiting prosecution. At a press conference, the prosecutor stated that the defendant was single, lived with his mother in a particular apartment complex in the city, and worked as a butcher. Was it proper for the prosecutor to disclose such information about the defendant to reporters?

Lex Luther committed a spectacular crime that garnered media coverage, and his arrest and prosecution led to even more media attention. Atticus Finch was the criminal defense lawyer representing Lex Luther. When a reporter asked Attorney Finch for a comment on the case, Finch replied, “I’m sure the only one guilty of anything here is the media. Everyone knows my client is innocent, and that the police framed him.” Were Finch’s comments proper under the Model Rules?

Two former college classmates had formed a business partnership, but later the partnership was dissolved, and litigation ensued. One of the partners hired a lawyer, who also went to college with him, to represent him in the litigation. The former classmates’ college reunion was two months away, and the attorney and the opposing party (the other partner) were both on the Alumni Association’s reunion committee. The attorney called the opposing party to discuss arrangements for the upcoming reunion banquet and did not mention the pending litigation at all. Opposing counsel overheard his client talking to the attorney and reported it to the judge, accusing the attorney of engaging in an ex parte communication with the opposing party, in violation of violating the ethical rules. Earlier in the proceedings, the judge had sternly admonished both lawyers against contacting the judge or the opposing party about the case without the other lawyer present. Is the attorney subject to discipline for talking to the opposing party, who was represented by counsel, without opposing counsel present?

An employee in the sales and marketing department of a large corporation experienced harassment from a supervisor and was (wrongly, she believed) demoted to a lower position. She retained counsel and filed a claim for workplace discrimination. While preparing for a trial, her attorney decided to contact some night shift workers in the corporation’s offsite warehouse to learn about the day-to-day operations of the corporation. The attorney was hoping to hear some revealing gossip that would uncover a larger pattern of discrimination by corporate management, and by the corporation’s human resources department. The attorney did this without permission from the corporation’s lawyer. If asked, the defendant corporation’s lawyer would certainly have forbidden it and would have told the warehouse workers not to talk to the plaintiff’s attorney at all. Was this communication by the plaintiff’s attorney proper?

An attorney represents the defendant in a lawsuit over the breach of an oral agreement to sell a breeding cow. The cow had turned out to be already pregnant at the time the parties made their agreement. The attorney’s client had agreed to sell the cow to another rancher, and received payment, but before delivery of the cow to the purchaser, the client discovered that the cow was pregnant. The client then reneged on the agreement because delivering a pregnant cow to the purchaser would be like giving the purchaser one animal (the expected calf) for free. The client suggested to the attorney that they assert a mistake of fact defense to the oral contract, claiming that neither he nor the purchaser knew or could have known that the cow was pregnant at the time of sale or would somehow become pregnant in the short time between payment and delivery. The attorney researched past court decisions and concluded that mistake of fact claims usually lose in scenarios like this. Moreover, in his various discussions with the client, the story has changed a little each time. The attorney now suspects that the client either is lying or is so confused that he will not be a credible witness at trial. The attorney would like to withdraw before filing an answer to the lawsuit asserting a defense of mistake of fact, because he knows they are unlikely to win, and he is not even sure if his client is telling the truth. Nevertheless, the client insists that the attorney should file the answer before withdrawing from the case, so that the client does not miss the deadline and face a default judgment but does not mind if he must find another lawyer to handle the discovery and trial phase. Would it be proper for the attorney to file the answer to the pleadings, asserting a mistake of fact defense?

An attorney obtained a large class-action judgment in a foreign court against an improperly named defendant for a toxic tort. The named defendant, which was now the judgment debtor of record, did not exist, so there had been no legal defense presented in the matter. The attorney then brought an action to execute on the judgment in a state court in State X. The enforcement action, however, named a large U.S.-based corporation as the defendant instead of the (improperly) named defendant in the foreign judgment. The corporation now listed in the action to execute the judgment had in fact been involved in the underlying incident that was the basis of the tort action, and it even had a similar name to the improperly-named defendant in the case. Even so, the attorney was seeking to execute a judgement against a corporation that had not participated in the foreign litigation and was not, at least technically, the named defendant in the judgment. As a result, the court dismissed the suit to execute on the foreign judgment. It was indisputable that the attorney had sought to execute a foreign judgment against an entity that was not the one named in the judgment, even though the entity that was the target of this action had some involvement in the background facts that gave rise to the suit originally. The attorney then appealed this dismissal. Could the attorney be subject to discipline for bringing a frivolous action and appeal?

Conglomerate Corporation, an international manufacturing company with diversified holdings in several industries, hired Attorney Barrows from Boutique Firm to represent it in a personal injury lawsuit in which it was the defendant. During early settlement negotiations, Attorney Barrows told the plaintiff that his client, Conglomerate, did not wish to settle the case for more than a few thousand dollars, even though Conglomerate’s Board of Directors had in fact tentatively approved up to a million dollars for settlement, subject to final approval by the Board. Did Attorney Barrows violate his ethical duties by making such untruthful statements during settlement negotiations?

Attorney Cole worked at Big Firm, and he exclusively handled litigation for Conglomerate Corporation, one of Big Firm’s most important clients. Previously, he had worked for a year at the state Office of the Attorney General. Conglomerate Corporation had no litigation with the state government, so Big Firm made no effort to screen Attorney Cole from any cases, though it would conduct customary conflict checks. In one case, Attorney Cole defended Conglomerate Corporation in a personal injury lawsuit over an accident with one of its delivery truck drivers. The plaintiff’s case depended on testimony from a certain eyewitness of the accident, who had already submitted an affidavit saying that Conglomerate’s truck had caused the accident. Attorney Cole contacted a lawyer representing the witness and told him that he had documentary evidence that the witness’ previous three employers had fired her for fraudulent recordkeeping, lying to supervisors to cover up mistakes, or lying to customers. This was just bluffing—no such documents existed. Attorney Cole believes this should constitute harmless “posturing,” which is normally appropriate in negotiations. Under the ethical rules, was it impermissible for Attorney Cole to make this false statement to the other party?

Attorney Barlow was a litigator, but he mostly handled divorces and child custody disputes. On one occasion, a prospective client indicated some hesitation about hiring Attorney Barlow to represent her in her divorce and custody case, due to his high fees. Desperate to garner a new client, Attorney Barlow offered to represent her on a contingent fee basis. The client declined this offer, because she planned to settle the matter as quickly as possible, and she expected that paying fees on an hourly rate would end up being less expensive. The case did not settle quickly, however, and the client soon fired Attorney Barlow and hired another lawyer for the trial. She mentioned to her appellate lawyer that her first attorney had offered to represent her on a contingent fee basis, and now that the matter was dragging on and on, she regretted that she did not agree to that fee structure. Her new lawyer knew that contingent fees in a divorce or custody case would constitute a violation of the Rules of Professional Conduct and reported Attorney Barlow to the state disciplinary authority. When disciplinary proceedings commenced, the Attorney Barlow maintained that he had not actually violated the Rules of Professional Conduct, because the client had brushed off his offer and insisted on paying an hourly fee. Even if he had attempted to violate the Rules, he argued, the client thwarted his attempt, and therefore no actual violation occurred. Is Attorney Barlow subject to discipline merely for attempting to violate an ethical rule, if the attempt never came to fruition?

Attorney Bates was a well-known family law practitioner who left his old firm and started his own solo practice. After establishing his own practice, he represented a certain client in an uncontested divorce. Sometime later, the same client hired Attorney Bates to represent her in litigation over the custody of her children. The client was concerned about her older sister, in whom she had confided for many years about the client’s struggles with substance abuse and mental illness. Her good relationship with her sister had ended, because of an intense argument over money one of them had borrowed from the other. The client claimed that she had been free from substance abuse for three years, and she was now managing her mental health issues very well. Her sister knew many of her darkest secrets. Attorney Bates located the sister, explained that the client was fighting for custody of her children, and that he expected the ex-husband’s lawyer to call her to testify at the hearing about the client’s former troubles. Attorney Bates then pleaded with her to show some consideration for the years of good relationship and good memories she shared with the client and to refuse to betray her sister’s confidence and reveal all her dark secrets. It was reasonable under the circumstances for Attorney Bates to think that the interests of the sister would remain unharmed if she refrained from giving such information. The sister felt deeply moved by this entreaty and agreed to stay out of the litigation. Was it improper for Attorney Bates to request that the sister withhold information from the court or the other party?

Attorney Abrams had a disagreement with a judge one day during a trial, and soon it turned into an intense argument in the courtroom. In the heat of the moment, the judge lost his temper in front of the jury and called Attorney Abrams “an embarrassment to the profession and a menace to his own clients.” Indignant, Attorney Abrams made an obscene gesture and shouted that the judge was corrupt and too old to remain on the bench. Later, when each of them regained his composure, they apologized to each other and to the jury. Nevertheless, the lawyer serving as opposing counsel reported Attorney Abrams to the state bar disciplinary authority, but she did not report the judge, for fear of retaliation in future cases in that court. Attorney Abrams believes he will not be subject to discipline for his actions. Is he correct?

During an interview with the local news station, a prosecutor harshly criticized a few of the local judges, blaming them for the backlog of pending criminal cases and their refusal to reimburse the local police and district attorney’s office for expensive investigatory costs. He suggested that the judges had organized crime connections. The prosecutor had no evidence to support these allegations, and he admitted that he was going further than most lawyers would in his assertions. The prosecutor’s statements were in fact untrue—none of the judges he mentioned had backlogs on their own dockets, and none of them had received any requests for investigatory reimbursements or disbursement authorizations. The state bar brought a disciplinary action against the prosecutor, but the prosecutor claimed that his statements had First Amendment protection and reflected his actual beliefs. Is the prosecutor correct?

During a criminal trial over an armed robbery, the state’s star witness died unexpectedly, and the prosecutor’s case quickly unraveled. The jury eventually acquitted the defendant, even though the defendant had initially confessed to the armed robbery and later recanted. A few weeks later, the same prosecutor obtained some uncorroborated evidence that the defendant also committed check fraud. Even though he did not have enough evidence to constitute probable cause, the prosecutor brought charges for check fraud in hopes that the defendant might accept a plea agreement with some jail time rather than undergo the ordeal of another trial. If so, the prosecutor thought, a dangerous armed robber would be off the streets, regardless of the reason. Were the prosecutor’s actions proper, according to the ethical rules?

Attorney Prince is the managing partner of a twelve-lawyer firm that specializes in criminal defense work. He assigns cases to the associate lawyers, who are his subordinates, and supervises their work. In handling workload issues, he frequently must balance competing demands for scarce resources. The firm receives a steady stream of court appointments for representation of indigent defendants, and they also have a constant influx of walk-in clients seeking representation in their misdemeanor and felony cases. Attorney Prince knows that he should monitor the workload of the supervised lawyers to ensure that the workloads do not exceed a level that may be competently handled by the individual lawyers. On the other hand, Prince feels strongly that that indigent defendants are better off receiving some legal help than no help at all, so he is unwilling to turn away any clients. Given that most of the criminal cases result in plea agreements, sometimes taking only a few hours to negotiate and finalize, usually there is a diminishing marginal value in the lawyers expending time and effort on background investigation or legal research for individual cases. In addition, Prince knows that the other lawyers working as his subordinates have an ethical duty to manage their own workloads, so he feels he is not responsible to duplicate that effort. As a result, he continues to assign new cases to associates, even when they complain that they already feel overwhelmed. Is Attorney Prince subject to discipline?

Attorney Addison was a second-year associate at Big Firm, under the direct supervision of a partner there. The partner assigned a new client matter to an associate, instructing him to draft and file a product liability lawsuit on the client’s behalf against Conglomerate Corporation. As the associate proceeded to work on the matter, however, he realized that the client had no basis in law or fact for the claim. Conglomerate Corporation was not the manufacturer or seller, and the type of product came under one of several federal statutes that shield manufacturers from product liability. The associate approached the partner about his concerns, but the partner told him to file the claim anyway, because the client was a longtime client of the firm and because there was a chance that Conglomerate Corporation would offer to settle the matter quietly without contesting the claim in court, in order to save legal costs. Would it be proper for the associate to proceed as the partner instructed?

A nonprofit corporation worked to preserve the environment. The nonprofit corporation retained an attorney to sue Conglomerate Corporation for violating pollution regulations. The attorney prevailed in the case, winning an injunction against Conglomerate, as well as the payment of several millions of dollars into a fund for cleanup of polluted areas. The court also ordered Conglomerate to pay attorney fees to the prevailing party in the case. The attorney had previously agreed to share the fees with the nonprofit corporation, with 85% of the fees going to the nonprofit corporation. Is it proper for the attorney to share the fees with the nonprofit corporation?

Harvey was a licensed attorney in State A, but his law practice was financially insolvent. He decided to move to another part of the country and start over, so he bought a ticket to State B. In State B the attorney ran advertisements in the local news offering to represent clients on small matters for a deeply discounted rate. Before long, Harvey was representing clients in his new location. All the matters he handled were simple and within his level of competency, and his clients were consistently satisfied with his representation. Eventually, the unauthorized practice of law authorities of State B brought an enforcement action against Harvey for practicing law without a license. Is Harvey subject to discipline for practicing without a license if his license in State A is still valid?

Attorney Abelard practiced with a prestigious local firm in State A. He was one of the country’s best-known experts in the specialized area of corporate mergers and acquisitions. Watts Corp. was a large electricity generator and distributor in the New England states. In the wake of recent industry deregulation, Watts plans to engage in a hostile takeover of Primordial Power, the oldest regional electricity provider in the Gulf Coast region. The legal work necessary to undertake and complete the acquisition would require the physical presence of Watts’ attorneys in several states besides State A, the only state where Attorney Abelard has a license to practice. Moreover, the merger of the two corporate entities would eventually require appearances before three or more federal agencies in Washington, D.C.—the Department of Energy, the Federal Trade Commission, the Securities and Exchange Commission, and even (tentatively) the Department of the Interior. Are Attorney Abelard and the other lawyers in his State A firm subject to discipline for undertaking this legal work across jurisdictional lines?

An attorney handled routine legal questions and small matters for a client, including contracts and leases, and obtained necessary licenses and permits for the client’s business to operate. After a legal dispute arose between the client and an outside vendor, the client contacted the attorney seeking representation. The attorney explained that she is not a litigator and referred the client to a reputable trial lawyer in that locale. The trial lawyer met with the client and agreed to provide representation for a contingent fee. The matter settled quickly. The trial lawyer then sent the attorney a small share of the contingent fee received in the case. When the attorney originally referred the case to the trial lawyer, she did not check for any conflicts of interest because she did not do any litigation work and knew she would not participate in representing the client in the matter. For purposes of current or future conflicts of interest, and for potential malpractice liability in the litigation, did an attorney-client relationship exist between the attorney and the client for the litigation matter?

An attorney agreed to represent a client in a lawsuit. During their discussions of the case, the litigation attorney mentioned to the client that one of the points in the case involved a novel question of law, for which the lawyer would need to seek advice from another lawyer with more expertise in that area. The lawsuit proceeded, the attorney obtained the advice that he needed, and the case eventually reached a verdict. At the end of the representation, the attorney sent the client a bill that included the attorney’s agreed-upon fee, as well as a reasonable fee for three hours of work performed by the expert outside counsel for research and a brief memorandum. The attorney reduced his own fee by the same amount, so that the client’s total bill was the same. The client had been unaware that he would have to pay the other lawyer as well but reluctantly agreed and paid the bill. Is the attorney subject to discipline for this additional fee?

An attorney opened her own law practice and decided to attract new clients through advertising. She advertised her legal services on billboards emblazoned with the logo, “LOWEST LEGAL FEES IN THE CITY!” The billboard contained the firm’s name, address, phone number, and website, but no disclaimers or qualifications about the claim regarding its legal fees. Thousands of lawyers practice in that city, and a legal aid clinic provides free legal services for homeless or indigent clients. The billboards are located on roads with very high rates of accidents and traffic fatalities, so the billboards are often visible to those who have just had an accident. Has the attorney violated the ethical rules governing lawyer advertising with these billboards?

An attorney managed her own practice as a sole practitioner and needed to attract more clients. One day, she heard that a former classmate from law school, who was now also in practice, was facing disciplinary action by the state bar for making live telephone solicitations of prospective clients. The attorney called her former classmate and offered to represent him in his hearing before the grievance committee for a fee of $400 per hour, which is higher than the usual rate for such representation. The attorney’s motivation was primarily for pecuniary gain, not concern for her former classmate. Could the attorney be subject to discipline for making this live telephone solicitation of her former law school classmate?

An attorney needs to attract more clients to his small law firm. An internet marketing company advertises “daily deals” and permits users to receive frequent email notifications of daily deals that might interest them. The internet marketing company makes arrangements with local businesses to offer goods or services at discount rates to the marketing company’s subscribers. After a certain number of subscribers purchase a particular daily deal, internet marketing company splits the proceeds with the local business, and the purchaser receives a code or electronic voucher with an expiration date. The attorney decides to use internet marketing company to find new clients, and offers an online deal for half-price legal fees if they retain the attorney. The attorney honors these commitments and resists the urge to raise his rates for the marketing company’s clients in order to offset the half-off rebate, so his advertisements there are not misleading in any way. The internet marketing company costs the attorney more than other internet advertisers. The internet marketing company promotes the attorney’s message to a large number of subscribers, and the company handles the processing of payments from the coupon purchasers. Most of the clients generated by the daily deal advertisements need very routine legal representation that generates low fees, such as submitting government forms, giving legal advice, or contract review. These tasks often generate fees of a few hundred dollars for the entire representation. Thus, nearly the entire fee paid by the marketing company’s customers actually goes to the company, not to the attorney. Could the attorney be subject to discipline for marketing his legal services through an internet marketing company in this way?